Public Transportation Agency Safety Plan

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 673

[Docket No. FTA-2015-0021]

RIN 2132-AB23

Public Transportation Agency Safety Plan

AGENCY:

Federal Transit Administration (FTA), DOT.

ACTION:

Final rule.

SUMMARY:

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

DATES:

The effective date of this rule is July 19, 2019.

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

ADDRESSES:

To register for webinars and for information about future webinars, please visit

https://www.transit.dot.gov/about/events.

FTA is committed to providing equal access for all webinar participants. If you need alternative formats, options, or services, contact

FTA-Knowledge@dot.gov

at least three business days prior to the event. If you have any questions, please email

FTA-Knowledge@dot.gov.

FOR FURTHER INFORMATION CONTACT:

For general information, contact

PTASP_QA@dot.gov.

For program matters, contact Adrianne Malasky, Office of Transit Safety and Oversight, (202) 366-1783 or

Adrianne.Malasky@dot.gov.

For legal matters, contact Michael Culotta, Office of Chief Counsel, (212) 668-2170 or

Michael.Culotta@dot.gov.

Office hours are from 8:30 a.m. to 5:00 p.m., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

A. Purpose of Regulatory Action

B. Legal Authority

C. Summary of Major Provisions

1. Summary of the Final Rule

2. Summary of Public Comments

3. Summary of the Major Changes to the Rule

D. Costs and Benefits

II. Background

III. Notice of Proposed Rulemaking and Response to Relevant Comments

A. Scope and Applicability of Public Transportation Agency Safety Plans

1. Section 5310, Section 5311, Small Section 5307, and Tribal Operators

2. Commuter Rail and Passenger Ferry Service

3. Contracted Service

B. Definitions

1. Accident

2. Incident

3. Occurrence

4. Serious Injury

5. Accountable Executive

6. Chief Safety Officer

7. Operator of a Public Transportation System

8. Rail Transit Agency

9. Performance Target, Safety Performance Target, and Performance Criteria

10. Small Public Transportation Provider

11. Requests for New Definitions

C. General Requirements

1. Role of the Accountable Executive

2. Approval of a Public Transportation Agency Safety Plan

3. Documentation of SMS Processes and Activities

4. Safety Performance Targets

5. Future Requirements in FTA's Public Transportation Safety Program and National Public Transportation Safety Plan

6. Process and Timeline for Annual Review and Update

7. Emergency Preparedness and Response Plans

8. Multiple Modes of Transit Service

D. State and Transit Agency Roles

1. Large Transit Agencies

2. Small Public Transportation Providers, Section 5311 Providers, and Section 5310 Providers

2.1. States Must Draft and Certify Safety Plans on Behalf of Small Public Transportation Providers

2.1.1. Option for State-Wide or Agency-Specific Safety Plans

2.1.2. Drafting and Certifying Safety Plans for Small Section 5307 Providers

2.2. Other Comments

3. Small Transit Providers May Draft and Certify Their Own Safety Plans

4. Direct and Designated Recipients Drafting and Certifying Safety Plans on Behalf of Smaller Transit Providers

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

1. General Comments

2. One-Year Compliance Timeframe

F. Certification of Safety Plans

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

H. Safety Performance Targets and Performance-Based Planning

I. Safety Management Systems

1. Safety Management Policy: General Comments

1.1. Safety Management Policy Statement

1.2. Employee Reporting Program

1.3. Safety Accountabilities and Responsibilities

2. Safety Risk Management

2.1. Safety Risk Management: General Comments

2.2. Safety Hazard Identification and Analysis

3. Safety Assurance

3.1. Safety Assurance: Safety Performance Monitoring and Measurement

3.2. Safety Assurance: Management of Change

3.3. Safety Assurance: Continuous Improvement

4. Safety Promotion

5. Scalability of SMS

6. SMS and Safety Culture

J. Safety Plan Documentation and Recordkeeping

1. Safety Plan Documentation

2. Safety Plan Records

3. Other Comments on Documentation and Recordkeeping

4. Database Systems

5. Staffing and Resources as a Result of Documentation and Recordkeeping

K. Funding

L. Staffing

M. Enforcement and Oversight

1. Triennial Reviews and State Management Reviews

2. State Oversight

3. Other Comments

N. NTD Reporting

O. Security

P. SSPP-PTASP Crosswalk

Q. Safety Performance Measures

R. Technical Assistance and Guidance

S. Coordination With Other Entities

T. Nexus Between the PTASP Rule and Other FTA Requirements

U. Americans With Disabilities Act Issues

V. Other Comments on the Rule

W. Regulatory Impact Analyses

1. Costs

2. Benefits

3. Regulatory Flexibility Act

X. Tribal Issues

1. Applicability of the Rule to Tribes

2. The State's Role in Tribal Safety Plans

3. Financial Impact on Tribes

4. Tribal Consultation

IV. Section-by-Section Analysis

V. Regulatory Analyses and Notices

I. Executive Summary

A. Purpose of Regulatory Action

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

1

Nonetheless, given public

transportation service complexities, the condition of transit equipment and facilities, turnover in the transit workforce, and the quality of policies, procedures, and training, the public transportation industry remains vulnerable to catastrophic accidents.

1

See United States Department of Transportation, Bureau of Transportation Statistics, “Table 2-1: Transportation Fatalities by Mode 1960-2016,” at

https://www.bts.gov/archive/publications/national_transportation_statistics/table_02_01;

and “Table

1-40: U.S. Passenger Miles (Millions) 1960-2015,” at

https://www.bts.gov/archive/publications/national_transportation_statistics/table_01_40.

This rule outlines requirements for Public Transportation Agency Safety Plans that would carry out explicit statutory mandates in the Moving Ahead for Progress in the 21st Century Act (Pub. L. 112-141; July 6, 2012) (MAP-21), which was reauthorized by the Fixing America's Surface Transportation Act (Pub. L. 114-94; December 4, 2015) (FAST Act) and codified at 49 U.S.C. 5329(d), to strengthen the safety of public transportation systems that receive Federal financial assistance under 49 U.S.C. Chapter 53. This rule requires the adoption of Safety Management Systems (SMS) principles and methods; the development, certification, implementation, and update of Public Transportation Agency Safety Plans; and the coordination of Public Transportation Agency Safety Plan elements with other FTA programs and rules, as specified in 49 U.S.C. 5303, 5304, and 5329.

B. Legal Authority

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

C. Summary of Major Provisions

1. Summary of the Final Rule

This rule adds a new part 673, “Public Transportation Agency Safety Plans,” to Title 49 of the Code of Federal Regulations. The rule implements the requirements of 49 U.S.C. 5329(d).

One year after the effective date of this rule, each State, local governmental authority, and any other operator of a public transportation system that receives Federal financial assistance under 49 U.S.C. Chapter 53, must certify that it has established a comprehensive Public Transportation Agency Safety Plan (PTASP). 49 U.S.C. 5329(d)(1). At this time, the rule does not apply to an operator of a public transportation system that only receives Federal financial assistance under 49 U.S.C. 5310 (Section 5310), 49 U.S.C. 5311 (Section 5311), or both 49 U.S.C. 5310 and 49 U.S.C. 5311. Large transit providers must develop their own plans, have the plans approved by their Boards of Directors (or equivalent authorities), and certify to FTA that those plans are in place and comply with this part. Small public transportation providers that receive Urbanized Area Formula Program under 49 U.S.C. 5307 may have their plans drafted or certified by the State in which they operate. A small public transportation provider may opt to draft and certify its own plan.

At a minimum, and consistent with 49 U.S.C. 5329(d), each Public Transportation Agency Safety Plan must:

• Include the documented processes and procedures for the transit agency's Safety Management System, which consists of four main elements: (1) Safety Management Policy, (2) Safety Risk Management, (3) Safety Assurance, and (4) Safety Promotion, as discussed in more detail below (49 CFR 673.11(a)(2));

• Include performance targets based on the safety performance criteria established under the National Public Transportation Safety Plan (49 CFR 673.11(a)(3));

• Address all applicable requirements and standards as set forth in FTA's Public Transportation Safety Program and National Public Transportation Safety Plan (49 CFR 673.11(a)(4)); and

• Establish a process and timeline for conducting an annual review and update of the Public Transportation Agency Safety Plan (49 CFR 673.11(a)(5)).

Each rail transit agency must include in its Public Transportation Agency Safety Plan an emergency preparedness and response plan, as historically required by FTA under the former regulatory provisions of the State Safety Oversight rule at 49 CFR part 659 (49 CFR 673.11(a)(6)).

A transit agency may develop one Public Transportation Agency Safety Plan for all modes of its service, or it may develop a Public Transportation Agency Safety Plan for each mode of service that is not subject to safety regulation by another Federal entity. 49 CFR 673.11(b). A transit agency must maintain records associated with its Public Transportation Agency Safety Plan. 49 CFR 673 subpart D. Any rail fixed guideway public transportation system that had a System Safety Program Plan (SSPP) compliant with the former regulatory provisions of 49 CFR part 659 as of October 1, 2012, may keep that plan in effect until one year after the effective date of this rule. 49 CFR 673.11(e). A transit agency that operates passenger ferry service regulated by the United States Coast Guard (USCG) or rail fixed guideway public transportation service regulated by the Federal Railroad Administration (FRA) is not required to develop a Public Transportation Agency Safety Plan for those modes of service. 49 CFR 673.11(f).

States and transit agencies must make their safety performance targets available to States and Metropolitan Planning Organizations (MPO) to aid in the planning process, and to the maximum extent practicable, States and transit agencies must coordinate with States and MPOs in the selection of State and MPO safety performance targets. 49 CFR 673.15.

On an annual basis, transit agencies and States must certify compliance with this rule. 49 CFR 673.13.

2. Summary of Public Comments

On February 5, 2016, FTA issued a Notice of Proposed Rulemaking (NPRM) for Public Transportation Agency Safety Plans. 81 FR 6344 (

https://www.gpo.gov/fdsys/pkg/FR-2016-02-05/pdf/2016-02017.pdf

). The public comment period closed on April 5, 2016. FTA received approximately 647 comments from approximately 77 entities, including States, transit agencies, trade associations, and individuals.

The majority of the comments addressed the administration of the rule. Over 100 comments focused on definitions, with the vast majority of those commenters requesting FTA to align terms and definitions with the terms and definitions that FTA recently finalized in other rules, such as the State Safety Oversight rule at 49 CFR part 674 and the Transit Asset Management rule at 49 CFR part 625. FTA received nearly 300 comments on issues relating to (1) the effective date and compliance date of the rule; (2) the drafting and certification of safety plans on behalf of recipients of FTA's Enhanced Mobility of Seniors and Individuals with Disabilities Program at 49 U.S.C. 5310 and other smaller recipients; (3) clarification of FTA's oversight process; (4) the need for FTA's technical assistance; (5) documentation and recordkeeping; and (6) the applicability of the rule.

FTA received over 80 comments on SMS. Many of the commenters expressed support for SMS, particularly given its flexibility and scalability.

Some commenters requested clarification of the flexibility and scalability of SMS, and to that end, they requested that FTA develop and issue a safety plan template. Other commenters requested clarification regarding specific provisions of SMS. In the NPRM, FTA sought comments on alternative regulatory frameworks to SMS, and in response to this request, FTA received no comments.

Detailed comment summaries and responses are below.

3. Summary of the Major Changes to the Rule

In response to the public comments, FTA made a number of changes to the rule. Below is a summary of those changes, which are discussed in more detail in the sections that follow.

Section 673.1 Applicability

In the NPRM, FTA proposed to apply the rule to every “State, local governmental authority, and any other operator of a public transportation system that receives Federal financial assistance under 49 U.S.C. Chapter 53.” FTA specifically asked the public whether the rule should apply to recipients and subrecipients of funds under FTA's Enhanced Mobility of Seniors and Individuals with Disabilities Program at 49 U.S.C. 5310 (Section 5310). FTA also specifically asked the public for alternative regulatory frameworks that satisfy the statutory requirements of 49 U.S.C. 5329 and are tailored to fit the needs of smaller operators of public transportation.

FTA received numerous comments in response to these questions and the regulatory proposal. Several commenters suggested that FTA exempt Section 5310 recipients from the rule because they are smaller non-traditional transit providers. Several commenters suggested that FTA adopt a more streamlined and simplified approach that is more tailored for smaller operators. At least one commenter suggested that FTA exempt subrecipients of Section 5311 Rural Area Formula Program funds from the rule.

In light of these public comments and the need for further evaluation, FTA is deferring regulatory action at this time on operators of public transportation systems that only receive Section 5310 and/or Section 5311 funds. This deferral will provide FTA time to further evaluate information and safety data related to these systems to determine the appropriate level of regulatory burden necessary to address the safety risk presented by these systems. Thus, this final rule does not address operators of public transportation systems that only receive Federal financial assistance under 49 U.S.C. 5310, 49 U.S.C. 5311, or both 49 U.S.C. 5310 and 49 U.S.C. 5311.

Section 673.5 Definitions

FTA updated the definitions of the terms “Accountable Executive” and “Transit Asset Management Plan,” and FTA changed the term “Performance Criteria” to “Performance Measure,” in an effort to align these terms and definitions with those in FTA's Transit Asset Management rule at 49 CFR part 625, which was published on July 26, 2016. FTA updated the definition of the term “Safety Risk Management,” added the term “Rail Fixed Guideway Public Transportation System,” and changed the term “Safety Risk” to “Risk” in an effort to align these terms and definitions with those in FTA's State Safety Oversight rule at 49 CFR part 674, which was published on March 16, 2016. FTA clarified in its definition of “Safety Management System Executive” that it means a “Chief” Safety Officer or an equivalent. FTA changed the term “Safety Risk Evaluation” to “Safety Risk Assessment” to add clarity to the final rule.

In the NPRM, FTA proposed to define “operator of a public transportation system” to exclude operators that “provide service that is closed to the general public and only available for a particular clientele.” This language was intended to narrow the type of Section 5310 recipients that would be subject to the rule. In light of FTA's decision to defer action on the applicability of the rule to all Section 5310 recipients and subrecipients—including operators that “provide service that is closed to the general public and only available for a particular clientele”—FTA is removing this language from the definition of “operator of a public transportation system.”

In the NPRM, FTA proposed to define “Small Public Transportation Provider” to mean “a recipient or subrecipient of Urbanized Area Formula Program funds under 49 U.S.C. 5307 that has one hundred (100) or fewer vehicles in revenue service and does not operate a rail fixed guideway public transportation system.” In response to public comments and for consistency with the Transit Asset Management Rule (81 FR 48889), FTA changed the definition of the term “Small Public Transportation Provider” to mean 100 or fewer vehicles in “peak” revenue service, as opposed to revenue service generally.

Section 673.11(a)(6) General Requirements: Emergency Preparedness and Response Plans

Based on public comments, FTA will provide rail transit agencies with the option to either include an emergency preparedness and response plan as a section of their Public Transportation Agency Safety Plan, or they may incorporate an existing emergency preparedness and response plan into their Public Transportation Agency Safety Plan by reference.

Section 673.11(d) General Requirements; § 673.13 Certification of Compliance: The Drafting and Certification of Public Transportation Agency Safety Plans on Behalf of Section 5310 Recipients and Subrecipients

In the NPRM, FTA proposed to require States to draft and certify safety plans on behalf of certain recipients and subrecipients of funds under Section 5310 and the Section 5311 Formula Grants for Rural Areas Program. In light of the public comments from these recipients requesting exemptions from the rule and a more streamlined and tailored regulatory approach for smaller operators, and given FTA has decided to defer action on applicability of the rule to Section 5310 and Section 5311 recipients and subrecipients, FTA does not need to require States to draft and certify safety plans for those recipients and subrecipients at this time.

Section 673.23(a) Safety Management Policy

In the NPRM, FTA proposed to require transit agencies to develop a written Safety Management Policy, which would include safety performance targets. FTA received numerous comments noting that FTA also was proposing to require transit agencies to set safety performance targets in the General Requirements section of the rule, so the requirement in the Safety Management Policy section appeared redundant. FTA agrees, and to eliminate any redundancies, FTA deleted that requirement from the Safety Management Policy section of the rule.

Section 673.25 Safety Risk Management

In response to comments, FTA revised its Safety Risk Management requirements to add clarity to the safety hazard identification, safety risk assessment, and safety risk mitigation processes in the final rule.

Section 673.27 Safety Assurance

In the NPRM, FTA proposed to require all transit agencies to develop

and implement a comprehensive Safety Assurance process. FTA proposed to require all transit agencies to develop and implement processes for (1) safety performance monitoring and measurement, (2) management of change, and (3) continuous improvement.

FTA received comments seeking clarity on one of the requirements related to safety performance monitoring and measurement, specifically, the requirement for each transit agency to “[m]onitor its operations to identify hazards not identified through the Safety Risk Management process established in § 673.25 of this subpart.” 49 CFR 673.27(b)(2) (as proposed in the NPRM). Some commenters suggested that this requirement appeared redundant and duplicative of each of the requirements under Safety Risk Management. FTA agrees with these commenters, and to add clarity, reduce redundancy, and lower burdens, FTA eliminated this requirement from the final rule.

More significantly, FTA received numerous comments requesting a reduction in the regulatory requirements for small public transportation providers. Given the limited administrative and financial resources available to small public transportation providers, FTA believes that a reduction in their regulatory burdens is appropriate. To that end, and to address the concerns expressed by commenters, FTA eliminated significant Safety Assurance requirements for all small public transportation providers. In the final rule, small public transportation providers only need to develop processes for safety performance monitoring and measurement. Small public transportation providers are not required to develop and implement processes for management of change and continuous improvement. FTA believes that these changes in the final rule will reduce their burdens significantly. Rail fixed guideway public transportation systems and recipients and subrecipients of Federal financial assistance under 49 U.S.C. Chapter 53 that have more than one hundred vehicles in peak revenue service must develop and implement Safety Assurance processes that include all of the regulatory requirements under 49 CFR 673.27, specifically, processes for safety performance monitoring and measurement, management of change, and continuous improvement.

Section 673.29(a) Safety Promotion

In the NPRM, FTA proposed to require transit agencies to establish comprehensive safety training programs for staff and contractors directly responsible for “the management of” safety. FTA received several comments expressing confusion over this requirement and the requirements of FTA's proposed Safety Certification Training Program Rule, which applies to staff and contractors who responsible for safety “oversight” on rail transit systems. In an effort to respond to the commenters and to eliminate confusion, FTA struck the language “the management of” from the rule, so it now requires safety training for staff and contractors who are “directly responsible for safety.”

Section 673.31 Safety Plan Documentation

In the NPRM, FTA proposed to require transit agencies to maintain their safety plan documents for a minimum of three years. To add clarity in the final rule, FTA is requiring transit agencies to maintain safety plan documents for three years “after they are created.”

Also, in the NPRM, FTA proposed to require a number of additional records related to a Public Transportation Agency Safety Plan. Specifically, FTA proposed to require transit agencies to maintain records related to (1) safety risk mitigations, (2) results of safety performance assessments, and (3) employee safety training. FTA received numerous comments requesting reduced recordkeeping burdens. FTA also received numerous comments, in general, from smaller transit operators requesting reduced regulatory burdens.

Upon review of these comments, FTA has eliminated the recordkeeping requirements in proposed 49 CFR 673.33 in their entirety. FTA believes that the records developed and maintained in accordance with 49 CFR 673.31 are sufficient to ensure that transit agencies are complying with the requirements of the statute and this final rule. FTA believes that this change in the final rule significantly will reduce the administrative, financial, and regulatory burdens on all transit operators.

D. Costs and Benefits

As discussed in greater detail below, FTA was able to estimate some but not all of the rule's costs. FTA was able to estimate the costs for transit agencies to develop and implement Public Transportation Agency Safety Plans, which are approximately $41 million in the first year, and $30 million in each subsequent year, with annualized costs of $31 million discounted at 7 percent. These costs result from developing and certifying safety plans, documenting SMS processes and procedures, implementing SMS, and maintaining records. FTA was not able to estimate the costs of actions that transit agencies would be required to take to mitigate risk as a result of implementing this rule, such as vehicle modifications, additional training, technology investments, or changes to operating procedures and practices. It is not possible for FTA to anticipate the strategies and actions agencies may adopt to address safety risks, or the time period over which these actions would occur.

FTA was unable to quantify the rule's benefits. To estimate safety benefits, one would need information regarding the causes of safety events and the factors that may cause future events. This information is generally unavailable in the public transportation sector, given the infrequency and diversity of the type of safety events that occur. In addition, one would need information about the safety problems that agencies are likely to find through implementation of their safety plans and the actions agencies are likely to take to address those problems. Instead of quantifying benefits, FTA estimated the potential safety benefits. The potential safety benefits are an estimate of the cost of all bus and rail safety events over a future 20-year period. The estimate is an extrapolation of the total cost of bus and rail events that occurred from 2010 to 2016.

Table 1 below shows the summary of the Costs and the Potential Benefits. The benefits of the rule primarily will result from mitigating actions, which largely are not accounted for in this analysis. FTA has not estimated the benefits of implementing the rule without mitigating actions, but expects they are unlikely to be large. Estimated costs for agencies' safety plans include certain activities that could yield safety improvements, such as improved communication, identification of hazards, and greater employee awareness, as well as increased accountability at the higher echelons of the organization. It is plausible that these activities alone could produce accident reductions that surpass the cost of developing the plan, though even greater reductions could be achieved in concert with other mitigating actions.

Table 1—Summary of the Costs and the Potential Benefits if Additional Unquantified Mitigation Investments Occur

[2016 Dollars]

Current dollar value

7% Discounted value

3% Discounted value

Qualitative Benefits

• Reduced bus and rail safety incidents with mitigation actions.

• Reduced delays in operations.

Estimated Costs (20-Year Estimate)

$602,485,710

$323,732,747

$450,749,898

Unquantified Costs

• Investments associated with mitigating safety risks (such as additional training, vehicle modification, operational changes, maintenance, and information dissemination).

Estimated Cost (Annualized)

30,558,081

30,297,473

II. Background

On July 6, 2012, the President signed into law MAP-21 (Pub. L. 112-141). MAP-21 authorized a number of fundamental changes to the Federal transit programs at 49 U.S.C. Chapter 53. This rule addresses the Public Transportation Agency Safety Plan within the Public Transportation Safety Program authorized under 49 U.S.C. 5329. This authority was reauthorized when the President signed into law the FAST Act on December 4, 2015.

The Public Transportation Safety Program consists of several key elements: The National Public Transportation Safety Plan, authorized by 49 U.S.C. 5329(b); the Public Transportation Safety Certification Training Program, authorized by 49 U.S.C. 5329(c); the Public Transportation Agency Safety Plans, authorized by 49 U.S.C. 5329(d); and the State Safety Oversight Program, authorized by 49 U.S.C. 5329(e). FTA has issued rules and guidance, and it will continue to issue rules and guidance, to carry out all of these plans and programs under the rulemaking authority of 49 U.S.C. 5329 and 5334(a)(11).

On October 3, 2013, FTA issued an Advance Notice of Proposed Rulemaking (ANPRM) for Public Transportation Agency Safety Plans, the National Public Transportation Safety Plan, the Safety Certification Training Program, and a new Transit Asset Management System. 78 FR 61251 (

http://www.gpo.gov/fdsys/pkg/FR-2013-10-03/pdf/2013-23921.pdf

). Through the ANPRM, FTA sought comments on 123 questions related to the implementation of the public transportation safety program and transit asset management; 42 of the 123 questions specifically were related to Public Transportation Agency Safety Plans. The public comment period for the ANPRM closed on January 2, 2014. In response to the ANPRM, FTA received comments from 167 entities, including States, transit agencies, trade associations, and individuals.

Following a comprehensive review of the comments, FTA issued several NPRMs for safety and transit asset management. In particular, FTA issued the NPRM for Public Transportation Agency Safety Plans on February 5, 2016. In this NPRM, FTA addressed comments related to the 42 questions in the ANPRM on Public Transportation Agency Safety Plans, specifically, question numbers 8-10, 17-31, 33-44, 47, 107-110, 112, and 116-121. Through the NPRM, FTA proposed to create a new part 673 in Title 49 of the Code of Federal Regulations, which would require each operator of a public transportation system to develop and implement a Public Transportation Agency Safety Plan. FTA proposed specific requirements for these safety plans in accordance with 49 U.S.C. 5329(d), including the following minimum requirements:

• An approval by the transit agency's board of directors, or an equivalent entity, and a signature from the transit agency's Accountable Executive;

• Documented processes and procedures for an SMS, which would include a Safety Management Policy, a process for Safety Risk Management, a process for Safety Assurance, and Safety Promotion;

• Performance targets based on the safety performance measures set out in the National Public Transportation Safety Plan;

• Compliance with FTA's Public Transportation Agency Safety Plan and FTA's Public Transportation Safety Program; and

• A process and timeline for conducting an annual review and update of the plan. In addition, rail transit agencies would be required to include an emergency preparedness and response plan in their Public Transportation Agency Safety Plans.

In light of the public interest in this rulemaking, and in an effort to provide guidance on the proposal and to solicit well-informed comments, FTA conducted numerous public outreach sessions and a webinar series related to the NPRM. Specifically, on February 12, 2016, FTA conducted public outreach for tribes and hosted a Tribal Technical Assistance Workshop wherein FTA presented its proposed rule and responded to technical questions from tribes. FTA subsequently delivered the same presentation during a webinar series open to all members of the public on February 24, March 1, March 2, and March 3. On March 7, FTA delivered the same presentation at an outreach session hosted by the National Rural Transit Assistance Program, which also was open to all members of the public. During each of these public outreach sessions and the public webinar series, FTA received and responded to numerous technical questions regarding the NPRM. FTA recorded the presentations, including the question and answer sessions, and made available the following documents on the public docket for this rulemaking (Docket FTA-2015-0021): (1) FTA's PowerPoint Presentation from the public outreach sessions and public webinar series (

https://www.regulations.gov/document?D=FTA-2015-0021-0012

); (2) a written transcript of FTA's public webinar of March 1, 2016 (

https://www.regulations.gov/document?D=FTA-2015-0021-0010

); (3) a consolidated list of every Question and FTA Answer from the public outreach sessions and public webinar series (

https://www.regulations.gov/

document?D=FTA-2015-0021-0041

); and (4) the results of polling questions from FTA's public outreach sessions (

https://www.regulations.gov/document?D=FTA-2015-0021-0011

). FTA also uploaded onto YouTube an audiovisual recording of its webinar from March 1, 2016. The video is available at the following link:

https://www.youtube.com/watch?v=FBj5HRatwGA&feature=youtu.be.

III. Notice of Proposed Rulemaking and Response to Relevant Comments

As stated above, FTA issued an NPRM for Public Transportation Agency Safety Plans on February 5, 2016. 81 FR 6344 (

https://www.gpo.gov/fdsys/pkg/FR-2016-02-05/pdf/2016-02017.pdf

). The public comment period for the NPRM subsequently closed on April 5, 2016. FTA received approximately 647 comments from approximately 77 entities, including States, transit agencies, trade associations, and individuals. FTA reviewed all of the comments and took them into consideration when developing today's final rule. Some comments were outside the scope of this rulemaking and FTA did not respond to comments that were outside the scope.

FTA received a number of comments related to the definitions of terms that are defined in other safety rulemakings. For example, FTA received comments on the terms, “Accident,” “Incident,” and “Occurrence,” which FTA defined in the NPRM to provide clarity regarding the types of safety “Events” that a transit agency should investigate, and these terms are defined in the State Safety Oversight (SSO) rulemaking. Given that the Public Transportation Agency Safety Plan rule has a more inclusive universe of stakeholders than the SSO rule, FTA is including responses to the majority of the comments that it received related to these and other definitions included in other safety rules, but in this final rule, FTA does not respond to comments related to reporting thresholds and other requirements under the final SSO rule. On March 16, 2016, FTA issued a final rule for State Safety Oversight (see

https://www.gpo.gov/fdsys/pkg/FR-2016-03-16/pdf/2016-05489.pdf

for a discussion of comments received on these terms), and FTA has adopted definitions found in that rulemaking in this rulemaking, where appropriate. Similarly, FTA received several comments related to the definition of the term “State of Good Repair,” which FTA was required to define in a rulemaking for transit asset management pursuant to 49 U.S.C. 5326. On July 26, 2016, FTA issued a final rule for Transit Asset Management wherein FTA defines the term “State of Good Repair,” and FTA has adopted that definition in this rulemaking. Please review the preamble of the Transit Asset Management final rule for FTA's responses to the comments that it received related to the proposed definition of “State of Good Repair” (see

https://www.gpo.gov/fdsys/pkg/FR-2016-07-26/pdf/2016-16883.pdf

). Relatedly, a number of commenters noted inconsistencies with the definitions throughout FTA's several safety rulemakings. In response, FTA has aligned the definitions in today's rule with other safety rulemakings and the Transit Asset Management final rule to ensure consistency.

Below, the NPRM comments and responses are subdivided by their corresponding sections of the proposed rule and subject matter.

A. Scope and Applicability of Public Transportation Agency Safety Plans

1. Section 5310, Section 5311, Small Section 5307, and Tribal Operators

Comments:

Several commenters supported FTA's proposal to require States to draft and certify safety plans on behalf of recipients and subrecipients of FTA financial assistance through the Enhanced Mobility of Seniors and Individuals with Disabilities Program at Section 5310. Several commenters also supported FTA's proposal only to apply this rule to Section 5310 recipients and subrecipients that provide service open to the public, and not to apply this rule to Section 5310 recipients and subrecipients that provide service closed to the public and only available for a particular clientele.

Several commenters recommended that FTA exempt all Section 5310 recipients and subrecipients from this rule. These commenters asserted that many Section 5310 operators are not traditional transit agencies—they are human service organizations with a small transportation service, and they do not have sufficient staff, money, or resources to implement all aspects of a safety plan. One commenter stated that recipients and subrecipients of FTA financial assistance under Section 5310 and Section 5311 should not be considered operators of public transportation, and thus, they should not be subject to this rule. Several commenters also requested that tribal transit operators be excluded from the requirements of this rule.

A few commenters asserted that the proposed delineation between “general public” and “closed door” is ambiguous. These commenters expressed concern that many smaller Section 5310 recipients may decide to discontinue transit service, thus reducing mobility for seniors and individuals with disabilities.

One commenter stated that any new regulations should be tailored for small operators, and that FTA should avoid adding additional requirements and regulatory burdens. This commenter requested that FTA consider an exemption for transit agencies that operate fewer than 30 vehicles in peak revenue service. Another commenter suggested requiring a limited set of streamlined and simplified requirements, without identifying what those requirements might be.

Response:

FTA appreciates the comments that it received regarding the proposed applicability of this rule. Pursuant to the statutory requirements of 49 U.S.C. 5329(d), “each recipient or State” is required to draft and certify a safety plan. The statute defines “recipient” to mean “a State or local governmental authority, or any other operator of a public transportation system, that receives financial assistance under [49 U.S.C. Chapter 53].”

Notwithstanding this definition, and in light of the public comments and need for further evaluation, FTA is deferring regulatory action regarding the applicability of this rule to operators of public transportation systems that only receive Section 5310 and/or Section 5311 funds. Further evaluation of information and safety data related to these operators is needed to determine the appropriate level of regulatory burden necessary to address the safety risk presented by these operators. Consequently, the rule does not apply to an operator of a public transportation system that only receives Federal financial assistance under 49 U.S.C. 5310, 49 U.S.C. 5311, or both 49 U.S.C. 5310 and 49 U.S.C. 5311.

FTA disagrees with the suggestion to create a threshold of 30 vehicles in peak revenue service, and it is adopting the definition of “operator of a public transportation system” as “a provider of public transportation as defined under 49 U.S.C. 5302(14).”

FTA agrees with the commenters who suggested that the final rule should be tailored for small operators and that the final rule should have simplified requirements. To that end, and as discussed in more detail below, FTA eliminated several significant requirements related to Safety Assurance for all small public transportation providers. Additionally, FTA eliminated requirements for Safety Assurance and a series of recordkeeping

requirements for all transit operators, regardless of size, in an effort to reduce their administrative, financial, and regulatory burdens.

2. Commuter Rail and Passenger Ferry Service

Comments:

Several commenters supported FTA's proposal to exclude from this rule rail fixed guideway public transportation (commuter rail) service regulated by FRA. Several commenters requested FTA to clarify that the rule applies to rail transit systems not subject to regulation by FRA. Three commenters requested FTA to clarify what it means to exclude rail transit agencies subject to regulation by another Federal agency. One commenter urged FTA to ensure that the rule does not duplicate the efforts of State Safety Oversight Agencies (SSOAs) and overly burden transit agencies.

One commenter suggested that FTA replace the term “commuter rail system” with the term “passenger rail system.” This commenter stated that the term “commuter” is not defined in the rule, leaving no context for determining what types of rail systems would be excluded. The commenter also asserted that rail transit agencies might provide passenger rail service that is subject to FRA regulations, but that service may not be considered “commuter” service, thus resulting in a too-narrow description of “commuter” and a contradiction to FTA's intent to prevent “duplicative, inconsistent, or conflicting regulations.”

Several commenters supported FTA's proposal to exclude from this rule passenger ferry service regulated by USCG. Two commenters expressed support for the exclusion of USCG-inspected ferry vessels from the proposed rule. However, these commenters suggested that FTA should revise the term “passenger ferries” to clarify that the exclusion refers to passenger-only ferry vessels and ferry vessels that carry both passengers and vehicles (the commenters suggested the phrase “ferry as defined by title 46 United States Code 2101(10b)”). Additionally, this commenter urged FTA to clarify that the exclusion of USCG-inspected vessels applies to subparts C and D of the proposed rule, in addition to subpart B.

Response:

FTA appreciates the support for its proposal to exclude passenger rail service regulated by FRA and passenger ferry service regulated by USCG from the requirements of this rule. As discussed throughout this document, this rule applies to each operator of a public transportation system, including rail fixed guideway public transportation passenger rail service that is not regulated by another Federal agency. To further clarify, to the extent that an operator of a public transportation system provides passenger rail service that is regulated by FRA and rail fixed guideway public transportation service that is not regulated by FRA, this rule only would apply to that portion of the rail fixed guideway public transportation service that is not regulated by FRA.

FTA appreciates the concerns regarding the use of the term “commuter rail system,” which is not defined in this rule, and the suggestion to replace the term “commuter rail system” with the term “passenger rail system.” Instead, in an effort to use terms consistently throughout all of FTA's rules and regulations, FTA is replacing the term “commuter rail system” with the term “rail fixed guideway public transportation” and is adopting the definition of this term as used in FTA's new State Safety Oversight (SSO) rule at 49 CFR part 674.

With respect to passenger ferry service, FTA clarifies that this rule would not apply to any passenger ferry service that is regulated by USCG, including passenger ferry service and ferry service that involves the transportation of both passengers and vehicles. The exclusion of ferry service regulated by USCG applies to the rule in its entirety.

3. Contracted Service

Comments:

Several commenters requested FTA to clarify how the rule would apply to transit agencies that contract for transit service. A commenter stated that the proposed elements of PTASPs are being implemented in the majority of transit systems operated by contractors, but contractors generally do not have direct relationships with transit agencies' top leadership. A commenter requested that FTA clarify how contracted agencies should divide roles and responsibilities and implement SMS without having to revisit existing contractual agreements. This commenter also encouraged FTA to provide additional technical assistance to assist agencies operating in contract environments in the development and implementation of PTASPs. Another transit agency urged FTA to clarify the extent to which the implementation and administration of SMS principles could be delegated to contractors. One commenter stated that if inter-city bus service is contracted, then the contractor, not the transit agency, should have primary responsibility for safety and compliance with the rule.

Two commenters asked FTA to clarify the rule's application to paratransit service. One of these commenters requested clarification as to how the rule would apply to an instance where a contractor provides paratransit service for a Section 5311 recipient and a separate Section 5310 recipient.

Response:

As noted above, the statutory provisions of 49 U.S.C. 5329(d) require each “State or local governmental authority, or any other operator of a public transportation system, that receives financial assistance under [49 U.S.C. Chapter 53]” to draft and certify a safety plan. Consequently, this rule applies to FTA's recipients and subrecipients, unless the transit operator only receives Section 5310 and/or Section 5311 funds. To the extent that a recipient or subrecipient contracts for transit service, FTA will defer to the recipient or subrecipient to ensure that each of the requirements of this rule are being satisfied through the terms and conditions of its contract, including the identification of safety roles and responsibilities. Ultimately, under the statute, each FTA recipient or subrecipient has the responsibility to ensure compliance with this rule and to certify compliance annually—not a contractor.

Similarly, paratransit service—whether general public or ADA complementary, and including contracted paratransit service—is subject to this rule, unless the transit operator only receives Section 5310 and/or Section 5311 funds. To the extent that a contractor provides paratransit service for multiple FTA recipients, each FTA recipient ultimately has responsibility for ensuring that its transit operation complies with this rule.

B. Definitions

1. Accident

Comment:

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

term diminishes advances made by safety and risk management professionals to adopt and promote bias-free language describing and categorizing incidents. Another commenter suggested that the proposed definition offers several categorizations for accidents without regard to cause, circumstance, or affected environment.

Several commenters suggested alternatives for the proposed definition of “Accident.” A commenter recommended using the threshold for accident notification in the former SSO rule at 49 CFR 659.33: “[M]edical attention away from the scene for two or more individuals.” Another commenter proposed that the definition for “Accident” should include a threshold of at least $100,000, otherwise every minor collision would be reportable in accordance with 49 CFR part 674, creating a burden on rail transit agencies' resources. This commenter suggested that accidents which result in property damage of $100,000 or less be classified as “incidents,” and be reportable to the SSOA and FTA, with a corresponding report to the National Transit Database (NTD) within thirty days. Another commenter remarked that the proposed definition of “Accident” should be more applicable to rail and bus/paratransit operations by using separate definitions for train and bus/paratransit accidents. For bus/paratransit, the commenter recommended that FTA should use the current Federal Motor Carrier Safety Administration (FMCSA) definition for “Accident” found in 49 CFR part 390. The commenter suggested that FTA could use an amended version of their proposed definition for “Accident” for rail operations that replaces “a report of serious injury to a person,” with “injuries requiring immediate medical attention away from the scene for two or more individuals.”

Response:

FTA included the definition of “Accident” in the proposed rule because the term appears in the definition of “Event” which is mentioned in the Safety Assurance section of the NPRM (a transit agency must develop a process to “[i]nvestigate safety events to identify causal factors”). FTA defined “Event” as an “Accident, Incident, or Occurrence,” and to provide guidance to the industry on these terms, FTA defined them in its safety rules. Notably, FTA finalized a definition for “Accident” in its new SSO rule at 49 CFR part 674, and FTA is adopting that definition in today's rule to ensure consistency throughout FTA's regulatory framework for safety.

FTA did not propose any reporting or notification requirements in this rule. FTA established reporting and notification requirements in the new SSO rule at 49 CFR part 674 and FTA's NTD Reporting Manual. Today's rule requires transit agencies to develop safety plans, and this rule outlines the requirements for those plans. Accordingly, FTA will not amend those notification and reporting requirements through today's rule.

FTA disagrees with the commenter who suggested that the phrase “serious injury” will increase transit agencies' notification and follow-up burdens; this language should simplify, streamline, and make consistent any follow-up process. FTA also disagrees with the commenter who stated that the term “Accident” is a bias-laden term. Its use is intended to define the universe of safety Events that must be investigated. FTA disagrees with the suggestion that the proposed definition offers several categorizations for Accidents without regard to cause, circumstance, or affected environment. FTA has offered clarification on this term in Appendix A to the new SSO rule at 49 CFR part 674 (

https://www.gpo.gov/fdsys/pkg/FR-2016-03-16/pdf/2016-05489.pdf

).

FTA acknowledges that a transit agency may have difficulty ascertaining a precise type of injury due to medical privacy laws. FTA does not expect transit agencies to violate any medical privacy laws to determine whether an injury is serious. FTA does not expect transit agencies to seek medical records of individuals involved in Accidents that may have resulted in serious injuries.

FTA disagrees with the commenter who recommended using the threshold for accident notification in 49 CFR 659.33, “medical attention away from the scene for two or more individuals,” as FTA believes that a serious injury to a single person is of sufficient concern to warrant designation as an “Accident.” Additionally, ambulance transportation away from the scene may not necessarily be an accurate indicator of the actual gravity of the Event, given the possibility of ambulance operators transporting individuals with minor injuries.

FTA disagrees with the commenter who suggested that the definition of “Accident” include a threshold of at least $100,000, and that Events which result in property damage of $100,000 or less be classified as “Incidents.” FTA did not utilize the original $25,000 threshold for “Accident” in the SSO rule because most collisions involving rail transit vehicles exceeds $25,000 in property or equipment damage and FTA believes that any threshold for property damage is arbitrary when determining whether an Event qualifies as an Accident. Removal of the $25,000 threshold also eliminates any need to separate rail transit property from non-rail transit property when making an assessment of damages.

Finally, FTA disagrees with the commenter who suggested that the proposed definition of “Accident” be made more applicable to rail and bus/paratransit by using separate definitions for train and bus/paratransit accidents. FTA intends to be consistent with its definitions, especially since this final rule applies to all operators of public transportation systems.

2. Incident

Comments:

One commenter stated that the proposed definition of “Incident” seems broad and undefined, asserting that under the proposed definition, any reported injury could be classified as an Incident. Another commenter asked how to distinguish between medical transport for serious and non-serious injuries. A commenter asked FTA to clarify what is considered “damage to facilities, equipment, rolling stock, or infrastructure” and how “damage” would be assessed to determine qualification for an Incident. Additionally, the commenter asked how a transit agency would differentiate damage and a simple mechanical issue, and whether every defect found on an inspection would now be considered “damage.” This commenter also remarked that the terms “personal injury” and “injury,” which are used in the definition for “Incident,” are not defined. A commenter suggested that the definition of “Accident” would be the better place to include one or more injuries requiring medical transport away from the scene.

One commenter asked whether a transit agency must track Incidents. Another commenter stated that the Appendix to 49 CFR part 674 requires rail transit agencies to report Incidents to FTA using NTD within thirty days; the commenter asked whether transit agencies providing bus transportation also must report bus-related incidents to FTA using NTD.

Response:

FTA included the definition of “Incident” in the proposed rule because the term appears in the definition of “Event” which is mentioned in the Safety Assurance section of the NPRM (a transit agency must develop a process to “[i]investigate safety events to identify causal factors”). FTA defined “Event” as an “Accident, Incident, or Occurrence,” and to provide guidance to the industry on these terms, FTA defined them in its safety rules. Notably, FTA finalized a

definition for “Incident” in its new SSO rule at 49 CFR part 674, and FTA is adopting that definition in today's rule to ensure consistency throughout FTA's regulatory framework for safety.

FTA disagrees with the commenter who stated that the definition of “Incident” is broad and undefined and that any reported injury could be classified as an Incident. As discussed in more detail in response to the comments on the definition for “Serious Injury,” FTA believes that there is a clear delineation between “serious injury” and “non-serious injury.”

FTA provided guidance in Appendix A to 49 CFR part 674 on how to define “damage to facilities, equipment, rolling stock, or infrastructure” and how “damage” would be assessed to determine qualification for an Incident. In Appendix A, “damage” that meets the Incident threshold is any non-collision-related damage to equipment, rolling stock, or infrastructure that disrupts the operations of a transit agency. Ultimately, each transit agency must assess the safety risk associated with any damage to its equipment facilities, equipment, rolling stock, or infrastructure, and whether it meets the definition of Accident, Incident, or Occurrence.

FTA does not believe that it is necessary to define “injury” or “personal injury” in this rule, and it defines “Serious Injury” for purposes of establishing a threshold by which an Event would be considered an Accident instead of an Incident. In today's rule, FTA has revised the definitions of “Accident” and “Incident” to make them consistent with FTA's SSO rule at 49 CFR part 674. Under the updated definitions, one or more “serious injuries” is the threshold for Accident and one or more non-serious injuries requiring medical transport away from the scene is considered an Incident.

Under FTA's new SSO rule at 49 CFR part 674, a rail transit agency must track and report an “Incident” through NTD, as has been the historical practice. Furthermore, a transit agency also must report Incident information for other modes to FTA through NTD. Please refer to the NTD Reporting Manual for further information on what information is collected on safety Events as a well as Accidents and Incidents, for both rail transit and bus agencies.

3. Occurrence

Comments:

One commenter asked how damage would be differentiated from mechanical issues or normal wear-and-tear. This commenter asked FTA to clarify the relationship between “Occurrence” and “Injury” given that neither “personal injury” nor “injury” are defined in the rule. Another commenter asked FTA to define “disrupt transit operations.” Finally, one commenter recommended omitting the proposed definition because it is too broad and does not serve a clear purpose.

Response:

FTA included the definition of “Occurrence” in the proposed rule because the term appears in the definition of “Event” which is mentioned in the Safety Assurance section of the NPRM (a transit agency must develop a process to “[i]investigate safety events to identify causal factors”). FTA defined “Event” as an “Accident, Incident, or Occurrence,” and to provide guidance to the industry on these terms, FTA defined them in its safety rules. Notably, FTA finalized a definition for “Occurrence” in its new SSO rule at 49 CFR part 674, and FTA is adopting that definition in today's rule to ensure consistency throughout FTA's regulatory framework for safety.

FTA believes that there is a clear distinction between damage and mechanical issues or normal wear and tear. Damage is physical harm done to something or someone.

2

Mechanical issues and normal wear and tear are not the result of something or someone inflicting harm on equipment, facilities, equipment, rolling stock, or infrastructure.

2

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

A disruption to transit operations could be any interference with normal transit service at an agency. An Occurrence is a safety Event that only involves a disruption of transit service. A safety Event that results in a serious or non-serious injury would not be an Occurrence.

FTA disagrees with the commenter who suggested that FTA should omit the proposed definition of “Occurrence” because it does not serve a clear purpose. The definition helps identify the universe of activity that a transit agency should investigate because it could present a safety risk.

4. Serious Injury

Comments:

Several commenters stated that transit agencies would not be able to obtain enough information about injuries to classify them as “serious,” given Federal Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. These commenters suggested that HIPAA privacy regulations prevent transit agencies from obtaining personal medical information from individuals involved in accidents. One commenter remarked that, in their experience, hospital staff refused to provide personal medical information to a transit police officer.

One commenter recommended that FTA should explain how transit agencies and SSOAs can comply with this definition, and this commenter suggested that FTA create the legal authority for States to do so, or develop an alternative approach. A commenter remarked that if FTA has authority to obtain this type of information, then FTA should do so on its own accord. The commenter asked if it would meet one of the exemptions from the Government in the Sunshine Act if FTA collects information. One commenter asked how FTA would address and reconcile the proposed definition with other applicable Federal policies and regulations.

One commenter asked whether FTA would expect transit agencies, States, and SSOAs to obtain contact information for every individual involved in an accident, and then monitor local hospitals or contact these individuals in the seven-day period to determine if anyone involved in the accident had to be hospitalized for more than 48 hours as a result of this accident. Finally, one commenter asked whether a doctor would be required to respond to every transit event that has the possibility of being classified as an accident to triage the situation and determine whether the event meets the definition of an accident.

Several commenters expressed concern about the definition of “Serious Injury” and its associated burden on transit agency staff. A commenter concluded that the proposed definition would require transit agencies, States, and SSOAs to step outside their training to practice some form of medicine—for which they are not licensed—to comply with the proposed rule, unless transit agencies, States, and SSOAs are expected to hire trained medical personnel as a part of their programs. The commenter stated that transit agency staff may not be aware of the nature or extent of an individual's injury, and these staff may only know that an individual was transported away from the scene for medical attention with very limited ability (and no authority) to confirm the individual's injury status. A commenter stated that, in order to meet a similar FRA requirement, the commenter expends considerable resources following up on individual claims, and is sometimes unable to properly classify events for months or years after the event date. The commenter concluded that the resources needed to gather this

proposed information would be burdensome, as the volume of passengers is much greater for FTA.

A commenter asserted that transit agency staff could report certain findings on their initial incident reports, but this effort would be burdensome, and the transit agency staff would have to rely on eyewitness reports rather than medical professionals' opinions, rendering the effort unreliable. The commenter asked whether an initial patient/scene assessment would suffice, or whether a definitive medical diagnosis would be required.

Several commenters suggested alternatives to the proposed definition of “Serious Injury.” Two commenters recommended that FTA use the definition in the former SSO rule at 49 CFR 659.33, which states that an accident involves injuries if there is a need for “immediate medical attention away from the scene for two or more individuals.” According to these commenters, verifying transport away from the scene would have several benefits, such as: Not requiring transit agencies, States, and SSOAs to practice medicine to classify events; avoiding HIPAA complications; allowing events classified as accidents and incidents to be reported and investigated in a timely manner; being a more reasonable threshold for injury definitions; requiring only easily attainable information; and its alignment with NTD reporting requirements.

One commenter questioned how FTA determined the classification for “serious” and questioned how serious an injury could be if no medical treatment was sought for seven days. The commenter stated that FTA needs to define “serious” and remove the subjectivity of whether or not an injury is serious. Two commenters asked for the value of defining “Serious Injury” (that is, why does FTA want to collect this information and how would it enhance overall safety). One commenter recommended that FTA remove this definition from all of its safety rules.

Response:

Through the Safety Assurance section of today's rule (49 CFR 673.27), FTA requires each operator of a public transportation system to develop a process for conducting investigations of safety events to identify causal factors. FTA defines the word “Event,” to mean an “Accident, Incident, or Occurrence,” and FTA defines “Accident” to mean, among other things, “a report of a serious injury to a person.” To provide guidance to the industry on this term, FTA defined “Serious Injury” in its safety rules, including its new SSO rule at 49 CFR part 674. FTA is adopting the definition of “Serious Injury” from the new SSO rule to ensure consistency throughout FTA's regulatory framework for safety.

FTA has addressed comments regarding its proposed definition of “Serious Injury” in the final SSO rule at 49 CFR part 674 (

https://www.gpo.gov/fdsys/pkg/FR-2016-03-16/pdf/2016-05489.pdf

) and in its responses to the definition of “Accident,” above. FTA acknowledges that a transit agency may have difficulty ascertaining a precise type of injury due to medical privacy laws, such as HIPPA. FTA does not expect transit agencies to violate these laws in order to obtain the information needed to determine whether an injury is serious, and it does not expect transit agencies to request the medical records of individuals involved in safety Events that may be classified as Accidents resulting in Serious Injuries. Nor does FTA expect transit agency staff to undergo medical training in order to determine whether an injury meets the threshold of “serious.” Instead, FTA expects safety personnel to exercise a common sense approach when evaluating injuries. As several commenters noted, some injuries may be readily known or observable at the scene of an event, in which case, a transit agency may make a determination as to whether an injury is serious. Other injuries may not be apparent until the individual undergoes a medical examination, in which case the injury would be deemed “serious” only if a transit agency becomes aware that the injury meets the threshold for seriousness. FTA believes that a transit agency may utilize these approaches when determining the seriousness of an injury, and it does not believe that it needs to reconcile the definition of “Serious Injury” with other laws.

Given the ability of transit agencies to make observations at the scenes of safety events and to evaluate data and information collected at these scenes, FTA does not believe that any burdens of this rule are unreasonable. FTA does not expect transit agencies to monitor local hospitals or contact individuals involved in safety events within the seven day period to determine if the individuals were hospitalized for more than 48 hours. FTA is not requiring doctors to respond to every safety Event that has the possibility of being classified as an Accident to triage the situation and determine whether the event meets the definition of an Accident, and FTA is not requiring transit agencies to hire medical personnel. In today's rule, FTA is requiring transit agencies to develop a process for conducting safety investigations.

5. Accountable Executive

Comments:

FTA received numerous comments regarding its proposed definition of “Accountable Executive.” Several commenters provided input on the definition of “Accountable Executive” as it relates to “Chief Safety Officer.” One commenter stated that, according to the proposed rule, the Accountable Executive is responsible for implementing and maintaining the SMS; however, this should be a primary responsibility of the Chief Safety Officer. Another commenter asked whether an Accountable Executive would experience a conflict of interest if he or she also serves as the Chief Safety Officer or SMS Executive, as allowed under proposed 49 CFR 673.23(d)(2), because the duties also involve operational, financial, and other responsibilities that may be in conflict with safety responsibilities.

Several commenters recommended that FTA clarify in the final rule that State officials are not “Accountable Executives” unless the State is a transit operator, and if so, only with respect to the State's activities as a transit operator. Several commenters asked whether the Accountable Executive is the chief elected official, such as a county executive or mayor, in cases where the transit operator is a county or city government. A transit agency, with a general manager who is responsible for the day-to-day aspects of the transit system and a chief administrator who is responsible for the administrative aspects of the organization, asked how it would designate a single Accountable Executive who meets all of the criteria of 49 CFR part 673.

A few commenters expressed concerns about the overlapping and burdensome responsibilities of the Accountable Executive, which may not allow for sufficient attention to safety. Several commenters said the proposed definition may give an elected official or board chair the designation of an Accountable Executive despite serving at a policy, rather than an operational, level. A transit agency argued that the proposed definition is ambiguous and inconsistent with the proposed National Public Transportation Safety Plan, and some definitions state that the Accountable Executive is in charge of an asset management plan, while other areas omit this requirement. One commenter asserted that the job duties of planning staff are inherently much different from maintenance staff activities, and staff should report to their respective managers instead of a

single executive. Similarly, a commenter stated that, in some instances, a transit agency's reporting structure is shaped by State or local laws to promote a separation of duties and financial checks and balances, and these important governmental tenets should not be disrupted by the new safety requirements. Several commenters suggested that the definition of Accountable Executive may not be applicable in some non-traditional transit agency hierarchies.

Several commenters suggested that the Accountable Executive should be a general manager, president, or equivalent officer who is responsible for safety, asset management, and human resources, but not have full control over the budgeting process. Another commenter stated that that proposed definition may be inappropriate because having one Accountable Executive for SMS, the asset management plan, and the safety plan is ineffective because the Accountable Executive should be represented by different individuals for each regulatory program. The commenter recommended that FTA define an Accountable Executive to be “an individual who is responsible for the Safety Management System and Agency Safety Plan, who shall be required to have a role in the [transit asset management plan] and investment prioritization for the respective agency.”

Response:

Each transit operator must identify an Accountable Executive within its organization who ultimately is responsible for carrying out and implementing its safety plan and asset management plan. And to be clear, a State that drafts a plan on behalf of another recipient or subrecipient is not the Accountable Executive for those transit operators.

An Accountable Executive should be a transit operator's chief executive; this person is often the president, chief executive officer, or general manager. FTA understands that at many smaller transit operators, roles and responsibilities are more fluid. However, FTA believes that, even in circumstances where responsibilities are either shared or delegated, there must be one primary decision-maker who is ultimately responsible for both safety and transit asset management. It is a basic management tenet that accountabilities flow top-down. Therefore, as a management system, safety and transit asset management require that accountability reside with an operator's top executive.

FTA received numerous comments on its proposed definition of “Accountable Executive” in its rulemaking on transit asset management, and FTA directs readers to the final Transit Asset Management rule at 49 CFR part 625 for further information (

https://www.gpo.gov/fdsys/pkg/FR-2016-07-26/pdf/2016-16883.pdf

).

6. Chief Safety Officer

Comments:

One commenter agreed with FTA that a Chief Safety Officer should not serve in other service, operational, or maintenance capacities. Several commenters agreed with FTA's proposal to allow Section 5310, Section 5311, and small public transportation providers to designate as the Chief Safety Officer a person who also undertakes other functions. Several commenters asked FTA to clarify the term “adequately trained.”

One commenter expressed concern that FTA may be assuming that any rail transit agency is large enough to merit its own Chief Safety Officer with no additional operational or maintenance responsibilities, indicating that this requirement is burdensome because a rail transit agency would have to hire or contract a separate Chief Safety Officer for a limited role. The commenter suggested that FTA should permit an exemption for small rail transit agencies similar to the exemption for small public transportation providers to resolve this concern. This commenter also asked FTA to clarify whether a Chief Safety Officer has to be in the direct employ of a rail transit agency and whether he or she could be a part-time employee.

A commenter stated that FTA has proposed, but not promulgated, training rules for SSOA managers, Federal employees, and transit agency staff who are responsible for safety oversight, and argued that these training requirements also should apply to a Chief Safety Officer prior to designation by the Accountable Executive.

One commenter stated that the terms “Chief Safety Officer” and “Safety Officer” are inconsistently used, and the term “Safety Officer” was not defined in the NPRM. To rectify this inconsistency, the commenter, who concluded that it is implied that the Safety Officer is the Chief Safety Officer, suggested that FTA should replace the term “Safety Officer” with “Chief Safety Officer.”

Response:

FTA appreciates the support from commenters regarding its proposed definition of “Chief Safety Officer.” Given the different sizes of transit operators, and given the varying operating environments of transit systems across the nation, FTA is deferring to each transit operator to determine the level of training that is adequate for their Chief Safety Officer.

FTA disagrees with the commenter who suggested that a Chief Safety Officer at a rail transit agency should be able to have multiple roles within the organization. Given the more complex operating environments of rail transit systems and the increased safety risks in these environments, FTA will not allow the Chief Safety Officers for rail transit agencies to have additional operational and maintenance responsibilities; it is necessary to have a single individual wholly dedicated to ensuring safety. FTA believes that this role should be a full-time responsibility at rail transit agencies, unless a rail transit agency petitions FTA to allow its Chief Safety Officer to serve multiple roles given administrative and financial hardships with having a single, dedicated, and full-time Chief Safety Officer.

Finally, FTA notes that all references to the term “Safety Officer” in the NPRM were intended to mean the term “Chief Safety Officer.”

7. Operator of Public Transportation System

Comments:

One commenter suggested that an “Operator of a Public Transportation System” should be “any organization, agency, or company that operates, or contracts someone to operate, any mode of transportation that is used by the general public in a defined city, State, or region.”

Response:

The proposed rule defines “Operator of a Public Transportation System” as “a provider of public transportation as defined under 49 U.S.C. 5302(14), and which does not provide service that is closed to the general public and only available for a particular clientele.” Given that FTA is deferring action regarding the applicability of this rule to Section 5310 recipients, FTA has changed this definition in the final rule to be “a provider of public transportation as defined under 49 U.S.C. 5302(14).” The additional language—“and which does not provide service that is closed to the general public and only available for a particular clientele”—is not needed since the rule is not applicable to Section 5310 recipients at this time. FTA believes that the proposed definition is sufficiently broad to encompass the categories of transit providers referenced in the commenter's definition. FTA does not agree that the definition needs to specify that an operator provide service in a defined city, State, or region.

8. Rail Transit Agency

Comments:

The proposed rule defines a “Rail Transit Agency” as “any entity that provides services on a rail fixed

guideway public transportation system.” One commenter asked FTA to clarify whether the proposed definition applies equally to a public transit operator and a contracted private firm that operates and maintains services on a rail fixed guideway public transportation system.

Response:

This rule applies to any operator of a public transportation system that receives Federal financial assistance under 49 U.S.C. Chapter 53, including rail transit operators that receive FTA funds and are not regulated by FRA, unless the operator only receives Section 5310 and/or Section 5311 funds. The application of this rule extends to contracted private firms that operate public transportation and receive FTA funds, but it does not extend to private contractors that provide service that is not public transportation.

9. Performance Target, Safety Performance Target, and Performance Criteria

Comments:

One commenter remarked that the proposed definition for “Performance Target” needs clarity. Another commenter stated that FTA should consider deleting the proposed definition for “Performance Target,” because the proposed definition for “Safety Performance Target” is more appropriate for this safety-related rule. This commenter also suggested revising the definition of “Safety Performance Target” to “a specific level of measurable performance for a given safety performance criteria over a specified timeframe.”

FTA proposed to define “Performance Criteria” as “categories of measures indicating the level of safe performance within a transit agency.” One commenter stated that this definition is confusing and possibly inconsistent with the proposed National Public Transportation Safety Plan. The commenter stated that the terms “Criteria” and “Measures” appear to be synonymous, and proposed the following definition for “Performance Criteria”: “Categories of safety performance measures that focus on the reduction of safety events, both for the public who use or interface with the rail system, and employees who operate and maintain the system.”

Response:

As appropriate, FTA has incorporated into this rule definitions that appear in other rulemakings undertaken pursuant to 49 U.S.C. 5329 and 5326, as well as the final joint FHWA/FTA Planning Rule which was published May 27, 2016 (see

https://www.gpo.gov/fdsys/pkg/FR-2016-05-27/pdf/2016-11964.pdf

). Accordingly, FTA has revised the definition of “Performance Target” and added the definition of “Performance Measure” to match the definitions used in the joint FHWA/FTA Planning rule and FTA's Transit Asset Management rule.

To avoid redundancy, FTA is deleting the definition for “Safety Performance Target” and keeping the definition of “Performance Target,” since these terms are one and the same for purposes of this rule.

FTA had to reconcile the use of similar terms throughout its statutory authorizations for safety and asset management, including the terms “criteria” and “measures.” Although Congress used two different terms throughout 49 U.S.C. Chapter 53, it intended these terms to be synonymous. In the NPRM, FTA proposed to define “Performance Criteria” to mean “categories of measures indicating the level of safe performance within a transit agency,” but to eliminate confusion in this final rule, FTA removes that term, replaces it with the term “Performance Measure,” and incorporates the definition of “Performance Measure” as used in FTA's Transit Asset Management rule. Consequently, FTA uses the term “Performance Measure,” in the place of “Performance Criteria,” throughout this final rule.

10. Small Public Transportation Provider

Comments:

The proposed rule defines “Small Public Transportation Provider” as “a recipient or subrecipient of Urbanized Area Formula Program funds under 49 U.S.C. 5307 that has one hundred (100) or fewer vehicles in revenue service and does not operate a rail fixed guideway public transportation system.”

Several commenters requested FTA to clarify that the “100 buses in revenue service standard” applies only to recipients of Section 5307 funds, and not recipients of Section 5310 or 5311 funds. One commenter asked whether the threshold of 100 vehicles in revenue service refers to total revenue fleet vehicles, peak vehicles, or something else. Another commenter that operates commuter rail service regulated by FRA, but has fewer than 100 buses in revenue service, asserted that they met the definition of a “Small Public Transportation Provider.” The commenter stated it posed this assertion to FTA during a webinar for this rulemaking on March 2, 2016, and it requested that FTA clarification the application of the rule to its scenario.

A couple of commenters remarked that the proposed definition for “Small Public Transportation Provider” differed between related rulemakings and notices, specifically the TAM proposed rule and FTA's Circular 9030.1E. Commenters noted that the TAM rule's reference to “in revenue service” is a typical definition in the industry and should be adhered to across all proposed rulemakings.

Other commenters suggested that the definition include providers with “100 or fewer fixed-route vehicles,” or be based on the service area's population rather than the number of buses. Additionally, one commenter suggested that vanpool fleets that are not open to the general public should be counted as revenue service vehicles.

Several commenters noted that significant differences exist between rail transit operators, large bus operators, and smaller operators, particularly in the ways in which they conduct business and in the rate of accidents and the consequences of those accidents. One commenter stated that the categories in the proposed rule are too broad and rigid and could have unintended consequences for small operators. The commenter remarked that the rigidity of a “two-tier system” could cause a Section 5307 recipient, with under 100 vehicles, to have their oversight provided by the State. Another commenter stated that the two-tier system does not take into account a Section 5311 recipient that may serve multiple counties with over 100 vehicles. The commenter remarked that there is no definition for this type of system within the “tiers” and that the Section 5311 recipient might be bumped into a higher category. One commenter suggested adding a third tier for systems operating fifty or fewer vehicles and no rail fixed guideway public transportation service to provide States with the opportunity to implement SMS scalable to the size and complexity of the transit organization.

Response:

FTA appreciates the comments that it received regarding its proposed definition for “Small Public Transportation Provider.” FTA agrees with the commenters who suggested that FTA align this definition with the definition in the final TAM rule, and FTA agrees with the commenters who suggested that FTA create the threshold for Small Public Transportation Providers based on vehicles utilized in peak revenue service, as opposed to revenue service in general, as peak revenue service is a threshold commonly used in the transit industry. Therefore, in today's final rule, FTA defines “Small Public Transportation Provider” to mean “a recipient or subrecipient of Federal financial

assistance under 49 U.S.C. 5307 that has one hundred (100) or fewer vehicles in peak revenue service and does not operate a rail fixed guideway public transportation system.”

11. Requests for New Definitions

Comments:

One commenter requested that FTA add new definitions for the term “safety performance assessment.” One commenter recommended that FTA clarify whether the term “Public Transportation Vehicle” includes rail, bus, paratransit, maintenance, and non-revenue vehicles. Several commenters recommended that FTA define the term “Transit Provider” as follows: “A State is not considered to be a transit provider by virtue of passing on funds to subrecipients under 49 U.S.C. 5310, 5311, or 5339, administering these programs, developing and implementing a TAM plan, or safety plan or certifying a safety plan, or taking any other steps required of a State by Chapter 53 of title 49, United States Code or other Federal statue, or by this or other FTA rules.”

Response:

For purposes of implementing this rule, FTA does not find it necessary to further define the term “safety performance assessment.” Generally, this term refers to a transit agency's evaluation of its success of managing safety risks. To the extent there is any confusion over this term, FTA will provide technical assistance.

FTA notes that a public transportation vehicle may include rail, bus, paratransit, maintenance, and non-revenue vehicles, as the term is utilized in the definition of “Accident.”

Finally, FTA did not propose to define the term “Transit Provider” in the NPRM, and FTA believes that the term is sufficiently descriptive and does not need to be defined in this rule.

C. General Requirements

Comments:

Several commenters provided high-level feedback regarding the general requirements for PTASPs as proposed in 49 CFR 673.11. One commenter suggested that FTA should clearly emphasize that these elements are minimum requirements and that a transit agency should be able to enhance its SMS and incorporate tools and best practices that are proven to be effective, particularly given the adaptability, scalability, and flexibility of SMS.

One commenter asserted that the combination of the general requirements for each written safety plan, along with the requirements to “establish SMS processes,” results in a lack of clarity regarding the required contents of the actual document that a transit agency would consider to be its safety plan. This commenter stated that FTA should provide at least the same degree of specificity with regard to the required contents of a transit agency's written safety plan that FTA provided for SSPPs under the former SSO rule at 49 CFR part 659.

Response:

As discussed throughout today's final rule, SMS is scalable and flexible, and it can be adapted to any transit agency's unique operating environment. The requirements in the rule provide the skeleton framework for safety plans, and FTA encourages transit agencies to incorporate tools and best practices that effectively mitigate and eliminate safety risks throughout their systems.

To be clear, each written safety plan must include the documented processes and procedures related to SMS, and the written plan must include each of the other requirements as outlined in the rule. FTA intentionally drafted broad, non-prescriptive requirements for SMS in an effort to develop a safety framework that could fit within the thousands of unique transit operating environments across the nation.

1. Role of the Accountable Executive

Comments:

Pursuant to FTA's proposed provisions at 49 CFR 673.11(a)(1), each transit agency's Accountable Executive must sign the agency's safety plan and subsequent updates thereto. One commenter supported this provision and asserted that the requirement is essential for SMS and for maintaining a positive safety culture. Another commenter agreed that the Accountable Executive with budgetary authority should review and approve the safety plan.

A couple of commenters asked whether the Accountable Executive must be the same individual for purposes of approving the agency's safety plan and the agency's transit asset management plan, and they asked whether the Accountable Executive must be the individual explicitly “responsible for implementing SMS.” These commenters also inquired about the Accountable Executive's role for municipal government agencies, and they asked whether the head of a city's department of transportation, the head of a city's department of public works, or a city manager may serve as the Accountable Executive for a municipal government agency, as opposed to a city's mayor.

Response:

As a preliminary matter, FTA distinguishes the role of the Accountable Executive from the role of a Board of Directors, or an Equivalent Authority. Pursuant to 49 CFR 673.11(a)(1), the Accountable Executive must sign the safety plan; the Board of Directors or an Equivalent Authority must approve the safety plan in accordance with 49 U.S.C. 5329(d)(1)(A).

Given the varying sizes and natures of transit systems, FTA defers to those systems in their designation of an Accountable Executive, so long as that single individual has the ultimate responsibility and accountability for the implementation and maintenance of the SMS of a public transportation agency; responsibility for carrying out the agency's transit asset management plan; and control or direction over the human and capital resources needed to develop and maintain both the agency's public transportation agency safety plan and the agency's transit asset management plan. For municipal government agencies, that individual could be a county executive or a mayor, or it could be the head of a city's department of transportation, the head of a city's department of public works, or a city manager. FTA has offered this non-exhaustive list of examples of Accountable Executives for illustrative purposes only. And while many individuals within a transit agency may be responsible for “implementing” SMS, the Accountable Executive is the individual with the ultimately responsibility for SMS implementation at the agency.

2. Approval of a Public Transportation Agency Safety Plan

Comments:

Pursuant to FTA's proposed provisions at 49 CFR 673.11(a)(1), each transit agency would be required to have its safety plan, and subsequent updates thereto, approved by the agency's Board of Directors, or an Equivalent Authority. One commenter supported this provision, indicating that this activity is essential for SMS and for maintaining a positive safety culture.

Several commenters asserted that the agency's Accountable Executive, not the Board of Directors, would be the more appropriate entity to approve the safety plan. These commenters stated that a Board of Directors, which can consist of limited-term elected officials, are not subject to the same training requirements as the Accountable Executive, and do not have the operational knowledge and expertise suitable for the review and approval of a safety plan. One of these commenters suggested that the Accountable Executive have top-level ownership of the safety plan, with a stipulated responsibility to educate and report to the Board of Directors on the agency's safety program.

Several commenters asked questions about the implementation of this

provision for agencies that lack Boards of Directors. A couple of commenters asked if transit agencies can request FTA to approve their “Equivalent Authorities,” or whether they must wait for an FTA oversight review to determine whether their Equivalent Authorities are consistent with the rule. A couple of commenters had specific questions regarding the adequacy of an Equivalent Authority. One example involved a streetcar being owned by a city, but being operated and maintained by a non-profit organization with its own Board of Directors. Another example involved a State Department of Transportation which does not have a Board of Directors, but instead, has an Administrator/CEO. One commenter asked FTA to provide a clear example of an “Equivalent Authority” if a recipient does not have a Board of Directors. Similarly, another commenter asserted that a State may have difficulty identifying an Equivalent Authority because a subrecipient may be a parish or county that does not necessarily have a Board of Directors. Another commenter recommended that an Equivalent Authority should have a thorough knowledge of a transit agency's daily operations and the authority to obtain operational and safety data so that it could provide safety oversight.

One commenter asked about the measure of “approval” for the Board of Directors, and inquired as to what that approval would denote in terms of safety responsibility.

Another commenter observed that a transit agency with rail and bus operations must have its safety plan approved by the SSOA for purposes of its rail operations, and suggested that FTA would have to approve the safety plan for purposes of its bus operations. This commenter expressed concern that, unless there are very clear guidelines for the review and approval of the safety plans, there is the potential for conflicting views and approvals, including approval of one operation and not the other.

Response:

FTA appreciates concerns from commenters indicating that members of a transit agency's Board of Directors may not be fully educated in safety; however, through the statutory provisions of 49 U.S.C. 5329(d)(1)(A), Congress required each transit agency's Board of Directors, or an Equivalent Authority, to approve the agency's safety plan. Through the Safety Management Policy provisions of 49 CFR 673.23 and the Safety Promotion provisions of 49 CFR 673.29, each transit agency is required to identify individuals who are responsible for safety in their organization and to ensure that those individuals are adequately trained, including staff and executive leadership, and this requirement should extend to a transit agency's Board of Directors.

If a transit agency does not have a Board of Directors, then an Equivalent Authority may approve its safety plan. An Equivalent Authority is an entity that carries out duties similar to that of a Board of Directors, including sufficient authority to review and approve a safety plan. For example, an Equivalent Authority could be the policy decision-maker/grant manager for a small public transportation provider; the city council and/or city manager for a city; a county legislature for a county; or a State transportation commission for a State. Given the varying sizes and organizational structures of the thousands of recipients and subrecipients throughout the country, FTA is not providing a prescriptive definition of this term, and it is deferring to each transit agency to identify who would be an Equivalent Authority for its system. FTA intends its list of examples to be non-exhaustive and illustrative only.

The approval of the safety plan should mean that the Board of Directors or the Equivalent Authority accepts the safety plan as satisfactory, that the safety plan complies with each of the requirements of this rule, and that the safety plan effectively will guide the transit operator with the management of safety risks.

Finally, to clarify, FTA does not intend to collect and “approve” safety plans. FTA intends to ensure that transit agencies comply with this rule by reviewing their safety plans through FTA's existing Triennial Reviews and State Management Reviews. Through these oversight processes, FTA may collect various documents, including safety plans, to ensure compliance with this part, but FTA will not provide regular “approvals” of the plans. SSOAs, however, must approve the safety plans of rail fixed guideway public transportation operations within their jurisdictions.

3. Documentation of SMS Processes and Activities

Comments:

Pursuant to FTA's proposed provisions at 49 CFR 673.11(a)(2), each transit agency would be required to document its processes and activities related to SMS in its safety plan. One commenter sought clarity regarding whether the safety plan must detail the processes and activities, or just indicate that such processes and activities exist. Another commenter asked which documents should be included in the safety plan, specifically whether the safety plan should include documents that are generated by the results of ongoing SMS activities, or only those documents which formally present a description of SMS processes.

Response:

Each safety plan must include documented SMS processes; it is not sufficient to merely indicate in the safety plan that SMS processes exist. Through the practice and implementation of SMS, each transit agency may generate data and other documentation, but the safety plan itself must document each of the processes as outlined in this rule. FTA is providing discretion to each transit agency to decide for itself whether it will incorporate processes and documented activities beyond those required in today's final rule.

4. Safety Performance Targets

Comments:

Pursuant to FTA's proposed provisions at 49 CFR 673.11(a)(3), each transit agency would be required to identify in its safety plan performance targets based on the safety performance measures that FTA establishes in the National Public Transportation Safety Plan. One commenter supported FTA's proposed list of safety performance measures as outlined in the National Public Transportation Safety Plan, but several commenters recommended that FTA expand the list of performance measures. One commenter recommended that FTA reduce its proposed list of safety performance measures to align with the safety outcomes that transit agencies currently report to NTD. One commenter stated that the proposed definition of “Performance Criteria” is confusing and inconsistent with the National Public Transportation Safety Plan. The commenter stated that the terms “Criteria” and “Measures” are synonymous, and proposed the following alternate definition: “categories of safety performance measures that focus on the reduction of safety events, both for the public who use or interface with the rail system, and employees who operate and maintain the system.” Several commenters requested that FTA provide agencies with additional guidance on the four basic safety performance measures.

One commenter asked whether the safety plan must contain specific quantitative performance targets for all performance measures. This commenter stated that specific quantitative targets would pose challenges for transit agencies and that all targets should be

broad and not static to allow agencies to adjust their targets as new information dictates. Several commenters requested FTA to allow transit agencies to update and revise their safety plans if FTA alters or adjusts performance measures.

Response:

FTA appreciates the comments that it received regarding its proposed safety performance measures; however, the proper vehicle for addressing these comments is through the notice and comment process tied to FTA's proposed National Public Transportation Safety Plan (RIN 2132-ZA04). The National Public Transportation Safety Plan will identify FTA's safety performance measures, not today's rule for Public Transportation Agency Safety Plans. The Public Transportation Agency Safety Plan rule only requires transit agencies to set performance targets based on the performance measures established in the National Public Transportation Safety Plan. FTA will address all of the comments related to safety performance measures in the National Public Transportation Safety Plan, including the above-referenced comments that were directed to this rulemaking.

FTA notes that in the NPRM for this rule, FTA used the term “Performance Criteria,” which it proposed to define as “categories of measures indicating the level of safe performance within a transit agency.” FTA used this term because the language of 49 U.S.C. 5329 uses the term “Performance Criteria.” Other parts of FTA's authorizing statute, such as the Transit Asset Management provisions of 49 U.S.C. 5326, use the term “Performance Measures.” FTA believes that Congress intended the terms “Performance Criteria” and “Performance Measures” to be synonymous. To eliminate confusion over distinctions between these terms and to ensure consistency with the use of these terms throughout FTA's programs, FTA has removed the term “Performance Criteria” from today's final rule and replaced it with the term “Performance Measure.”

Finally, in accordance with the statutory requirements of 49 U.S.C. 5329(d)(1)(E), each transit agency must include in its safety plan, “performance targets based on the safety performance criteria and state of good repair standards.” These targets must be specific numerical targets set by transit agencies themselves. FTA emphasizes, however, that the safety plan is intended to be a living document that evolves over time. FTA expects transit agencies to modify their safety plans, and to adjust their performance targets, as they collect data and implement SMS. Indeed, the performance targets may change from year to year, or more frequently, as safety data may necessitate.

5. Future Requirements in FTA's Public Transportation Safety Program and National Public Transportation Safety Plan

Comments:

One commenter requested FTA to provide guidance on what it means to “address” the requirements and standards in its Public Transportation Safety Program and National Public Transportation Safety Plan. Another commenter expressed concern that FTA has not established formal standards for these requirements, and requested FTA to establish minimum measures and targets for safety performance and improvement.

Response:

In today's final rule, FTA is requiring each transit agency to address—more specifically, to ensure that it is complying with—all applicable requirements and standards as set forth in FTA's Public Transportation Safety Program at 49 CFR part 671 and the National Public Transportation Safety Plan. In particular, each transit agency must identify safety performance targets based on the performance measures that FTA establishes in the National Public Transportation Safety Plan. Additionally, FTA encourages transit agencies to adopt any voluntary minimum safety performance standards established in the National Public Transportation Safety Plan, until mandatory standards are established, in which case each transit agency must fully comply with those safety performance standards. To the extent that FTA amends its Public Transportation Safety Program Rule or the National Public Transportation Safety Plan in the future, FTA expects each transit agency to amend its safety plan, as appropriate.

6. Process and Timeline for Annual Review and Update

Comments:

One commenter asked FTA to clarify if the timeline for the annual review process is determined by each transit agency, or whether there is a particular date by which an annual review and update is required.

Several commenters disagreed with the proposed requirement that the plans be updated annually. Some commenters suggested that safety plans only need to be updated every two years because the requirement for an annual update of safety plans is excessive and burdensome. Several of these commenters asserted that if annual action is needed, an annual review and status report would be less resource intensive. A few commenters suggested that safety plans need only to be updated every two years, unless there is a significant policy or change in condition (such as a fatality) that warrants a change. Another commenter recommended the same approach, but with updates required every three years rather than two years. One commenter suggested alternative review schedules ranging from every two years to every five years. One commenter suggested that organizations which meet various criteria should be placed on a five year review plan and they should be required to submit any requested updates to policies for review and approval.

One commenter asserted the review requirement should be consistent with FTA's proposed rule for Transit Asset Management Plans, which would require each transit agency to update its Transit Asset Management Plan at least once every four years. Additionally, this commenter suggested that the rule should require an update of a safety plan in any year when risk assessments result in the need for substantial mitigation, or if there are significant changes to asset inventory, condition assessments, or investment prioritization.

A couple of commenters asked about the required annual update as it may relate to a rail transit agency's SSPP annual reviews. A commenter asked whether the process for conducting annual reviews would likely be similar to the SSPP annual reviews, including requirements that an Accountable Executive would perform the review and that a transit agency document all updates and revisions. A commenter suggested that the proposed requirement to conduct an annual review and update the safety plan, as needed, differed from the requirement to conduct a formal annual internal audit of the SSPP.

A commenter expressed concern with FTA's decision to publish the National Public Transportation Safety Plan with no schedule for revision, which would cause transit agencies to continuously update their safety plans to coincide with any changes in FTA guidance documents. This commenter further encouraged FTA to define prescriptive elements of the annual review and update process to better guide agencies.

Response:

Pursuant to the statutory provisions of 49 U.S.C. 5239(d)(1)(D), each operator of a public transportation system must develop a safety plan which includes “a process and timeline for conducting an annual review and update of the safety plan.” In light of this statutory language, today's final rule requires each transit agency to establish a process and timeline for conducting a review and update of its

safety plan, and this review and update must occur at least annually. 49 CFR 673.11(a)(5).

Given the diversity in transit systems across the country, and given each transit agency's unique operating environment, FTA is deferring to each transit agency to determine, for itself, the frequency of its safety plan reviews and updates each year, and the process for doing so. Each transit agency must certify compliance with these requirements through its annual Certifications and Assurances to FTA.

FTA disagrees with the commenters who proposed that the annual review period for the safety plans be changed to a less frequent time period, such as two years, three years, four years, or five years. The statutory provisions of 49 U.S.C. 5329(d)(1)(D) do not provide that latitude. Notwithstanding the statute, as a matter of a best safety practice, FTA believes that each transit agency should annually review its process for hazard identification and risk analysis in an effort to prevent safety events. As a transit agency collects data through the hazard identification and risk analysis processes, the transit agency should be evaluating its safety performance targets to determine whether they need to be changed, as well.

FTA agrees with the commenter who suggested that along with an annual review, a transit agency should update its safety plan at any point when risk assessments result in the need for substantial safety mitigation, or if there are significant changes to asset inventory, condition assessments, or investment prioritization.

Regarding the annual reviews of SSPPs, FTA notes that under its new public transportation safety program, the requirements for SSPPs under the former regulatory provisions of FTA's SSO rule at 49 CFR part 659 have been eliminated. Today's requirement for a PTASP under 49 CFR part 673 replaces the old requirement for an SSPP under 49 CFR part 659. Therefore, annual reviews of the PTASP now will be required, and SSPPs will become obsolete for rail transit agencies one year after the effective date of this final rule.

Finally, regarding the National Public Transportation Safety Plan, FTA will update the National Public Transportation Safety Plan when it believes it is necessary to do so, based on safety needs in the public transportation industry. FTA notes that it must make any changes to the National Public Transportation Safety Plan through the public notice and comment process, and the transit industry will have the opportunity to provide input on any changes to this document. Furthermore, FTA believes that changes to the National Public Transportation Safety Plan will not necessarily cause transit agencies to update their PTASPs. Currently, the National Public Transportation Safety Plan and the Public Transportation Agency Safety Plans are linked through the requirements for performance targets in agency safety plans based on the performance measures in the National Public Transportation Safety Plan.

7. Emergency Preparedness and Response Plans

Comments:

Pursuant to the proposed provisions of 49 CFR 673.11(a)(6), each rail transit agency would be required to include an emergency preparedness and response plan in its safety plan. Although a commenter noted that there is no statutory language in 49 U.S.C. 5329 which requires emergency preparedness and response plans, the commenter agreed that this type of plan is important and should be included in safety plans. One commenter supported the requirement that transit agencies develop a plan for the delegation of responsibilities during an emergency, but encouraged FTA to include in the final rule a requirement that ensures transit agencies provide adequate training for workers responsible for tasks during emergencies.

Two commenters suggested that FTA should provide transit agencies with the option of separating their safety plans and their emergency preparedness and response plans, developing them as two separate documents. One of these commenters suggested that these documents are fundamentally different and the emergency preparedness and response plan contains information that should not be widely distributed. One of these commenters suggested that some transit agencies that have not previously complied with 49 CFR part 659 may have difficulty developing a robust emergency preparedness and response plan. This commenter also stated that FTA should take into consideration the time and resources needed to develop a comprehensive emergency response plan by publishing templates for these plans, offering assistance to those transit agencies developing them for the first time, and extending the implementation deadline for this final rule. Another commenter requested clarification regarding whether this final rule would require a System Security Plan and an emergency preparedness and response plan to be separate documents.

One commenter suggested that FTA revise the rule to allow a transit agency to include or reference the emergency preparedness and response plan in its safety plan. This commenter said this revision would be consistent with the intent of FTA in the Section-by-Section Analysis portion of the NPRM which states that this section would require that each rail transit agency “include, or incorporate by reference” the emergency preparedness plan in its safety plan.

Another commenter asked FTA to clarify the relationship between the emergency preparedness and response plans required in this rule to the emergency preparedness and response plans required in the former SSO provisions of 49 CFR 659.19(k).

Response:

Although the statutory provisions of 49 U.S.C. 5329 do not require emergency preparedness and response plans, FTA's State Safety Oversight Rule historically has required rail transit agencies to have emergency preparedness and response plans as part of their SSPPs. Since rail transit agencies already have these plans in place, FTA is carrying over the requirement for those plans into today's rule. FTA's intent is to make transit safer, not to make transit less safe by eliminating historical requirements that have proven to be effective. FTA acknowledges the potential burdens on transit agencies that do not have these plans in place, and therefore, FTA only is requiring emergency preparedness and response plans from rail transit agencies, which should already have them in place. FTA agrees with the commenter who suggested that these plans are important, as recent safety events have demonstrated the need and utility of emergency preparedness and response plans, particularly for rail transit systems.

FTA agrees that rail transit agencies should develop plans to include the delegation of responsibilities during an emergency. FTA is deferring to transit agencies on how to document their emergency preparedness and response plans, and FTA will allow transit agencies to combine, include, incorporate by reference, or separate their emergency preparedness and response plans and their safety plans.

FTA is issuing templates and guidance for safety plans concurrently with the issuance of today's final rule. FTA intends to develop guidance specific to emergency preparedness and response plans in the future. FTA also will provide technical assistance to rail transit agencies that are modifying or developing emergency preparedness and response plans.

FTA notes that it no longer is requiring System Security Plans as previously required for rail transit agencies under the former regulatory

provisions of 49 CFR part 659—the responsibility for the oversight of transit security resides with the U.S. Department of Homeland Security's Transportation Security Administration (TSA). However, to the extent that a transit agency has a security plan, FTA will allow a transit agency to incorporate the security plan into its safety plan, if the transit agency desires.

In light of the above, FTA is revising the language in today's final rule to match the intent referenced in the NPRM's Section-by-Section Analysis, which states that each rail transit agency is required to “include, or incorporate by reference” an emergency preparedness and response plan in its safety plan. FTA directs readers to its SSPP-PTASP Crosswalk interim guidance document for further information on the relationship between SSPPs and PTASPs (

https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/PTSP_NPRM_SSPP_Side_by_Side.pdf

). Additional guidance will be forthcoming, and FTA will post it on its website (see

https://www.transit.dot.gov/regulations-and-guidance/safety/transit-safety-oversight-tso

).

8. Multiple Modes of Transit Service

Comments:

A few commenters supported FTA's proposed flexibility for transit agencies to develop one safety plan for all modes of transit. A couple of commenters stated that they would develop one safety plan for all modes. One of these commenters stated that updating and monitoring several plans is unrealistic and increases the workload and approval processes. This commenter also asked if FTA would issue rules specific to locally operated transit systems.

A couple of commenters encouraged the use of one safety plan that encompasses all modes of transportation. A commenter stated that if a transit agency develops one safety plan for all transportation modes, then that transit agency should identify those portions of its system that are regulated by another Federal entity and include any additional requirements from those Federal entities in the safety plan.

One commenter suggested that safety plans for all transit modes creates a difficult regulatory process for SSOAs, since SSOAs have regulatory authority over the rail mode only. This commenter recommended that FTA require rail transit agencies to develop a separate plan for rail, since the safety plan must be submitted to the SSOA for review and approval. Alternatively, the commenter requested that FTA include specific processes for SSOAs and rail transit agencies when dealing with a single plan covering multiple modes.

Response:

FTA agrees with and appreciates the commenters who would like the flexibility to either have one safety plan or multiple safety plans for multiple modes of transit service. As FTA stated in the NPRM, it intends to allow flexibility and choice so that transit agencies may draft multiple plans or only one plan, as there are many different sizes and types of transit agencies—a single plan may work better for some agencies, whereas multiple plans for multiple modes of transit service may work better for others (especially the larger transit agencies that have multiple divisions and operate commuter rail, heavy rail, light rail, bus, and other transit modes).

FTA disagrees with commenters who would like to develop a single plan for all modes of transportation service, particularly service that is regulated by another Federal entity, such as FRA. Other Federal regulators may have specific requirements for safety plans that fall under their jurisdiction that may conflict with this final rule. Notably, FRA's statutory and regulatory framework for rail safety provides data protection in safety plans; FTA's statutory and regulatory framework does not. FTA is concerned that combining PTASPs and FRA-regulated safety plans would result in a loss of that data protection for the rail safety covered by FRA. Therefore, FTA will not allow a transit agency to combine its PTASP with a safety plan for service regulated by another Federal agency.

FTA disagrees that SSOAs will have difficulty approving safety plans that address rail and bus service. Indeed, SSOAs have regulatory authority over rail transit service only, and SSOAs should review only the rail components of safety plans. FTA will provide additional guidance and training in the future to assist SSOAs with their review and oversight of PTASPs and SMS.

D. State and Transit Agency Roles

1. Large Transit Agencies

Comments:

One commenter recommended that the rule detail the requirements applicable to large transit agencies.

Response:

Pursuant to this rule, every operator of a public transportation system—large and small—must comply with each of the requirements outlined in today's final rule, unless the operator only receives Section 5310 and/or Section 5311 funds. All sections and requirements of this rule as outlined in 49 CFR part 673 are applicable to large transit agencies, specifically, rail fixed guideway public transportation systems and recipients and subrecipients of FTA funds under 49 U.S.C. Chapter 53 that operate more than 100 vehicles in peak revenue service.

2. Small Public Transportation Providers, Section 5311 Providers, and Section 5310 Providers

2.1. States Must Draft and Certify Safety Plans on Behalf of Small Public Transportation Providers

2.1.1. Option for State-Wide or Agency-Specific Safety Plans

Comments:

Several commenters responded to FTA's question as to whether FTA should require States to draft a single state-wide plan; individual safety plans for each Section 5310, Section 5311, and small public transportation provider located within that State; or defer to the State's preference. A few commenters recommended that each State should have the flexibility to choose whether the State will develop and certify a single state-wide plan or draft individual safety plans on for each agency. One commenter stated that the State should be required to draft an umbrella plan for more than just “small public transportation providers” and an agency can choose to use that plan or develop their own plan that complies with the overarching plan. Another commenter stated that state-wide plans should be generic and that States should develop an SMS that would be flexible enough to meet the needs of each of the individual transit agencies within their jurisdictions. This commenter also asked what might happen when a transit agency's safety plan differs from another transit agency's safety plan drafted by their State. One commenter suggested a “hybrid” approach whereby the State may draft a single safety plan, and include appendices that incorporate unique situations for certain transit agencies. Another commenter suggested that if a State develops a state-wide plan, then all transit providers should be required to provide copies of their plans and self-certifications to the State.

One commenter asserted that small urban and rural operations likely will be different, and if a State must draft separate safety plans for each transit agency, then this effort will be burdensome. On the other hand, the commenter asserted, if the State drafts only a single safety plan for all transit agencies under this regulatory provision, then the safety plans may be ineffective and meaningless.

In response to FTA's question as to how a single state-wide safety plan could respond to the Safety Risk

Management component of SMS (such as the identification of risks and hazards for each unique transit agency), several commenters stated there are already processes in place at State Departments of Transportation that can integrate individual SMS components of Safety Risk Management for small bus public transportation providers to enable the drafting of a state-wide agency safety plan.

Response:

To provide maximum flexibility for States and transit providers, FTA is deferring to the States and the small public transportation providers within those States to determine whether each State will draft and certify a single state-wide safety plan for all small public transportation providers or whether it will draft and certify multiple individualized safety plans for each of these transit operators. FTA recommends as a best practice that each State draft and certify individualized safety plans on behalf of each of these small public transportation providers given the inherently unique safety concerns, issues, hazards, and risks for each transit operator. If a State drafts a single state-wide safety plan, then the State must ensure that the plan clearly identifies each transit operator that the plan will cover, the names of the Accountable Executives and Chief Safety Officers, the safety performance targets for each transit operator (and determined in conjunction with each operator), and the hazard identification, risk analysis, Safety Assurance, and other SMS processes for each transit operator (and developed in conjunction with each transit operator).

FTA notes that, in this rule, States are not required to draft and certify safety plans on behalf of transit operators that only receive Section 5310 and/or Section 5311 funds. As discussed above, FTA is deferring regulatory action regarding the applicability of this rule on these operators until a later date.

2.1.2. Drafting and Certifying Safety Plans for Small Section 5307 Providers

Comments:

Several commenters suggested that States should not be required to draft and certify safety plans for small Section 5307 providers in large urbanized areas because these providers are not subrecipients of funds apportioned to States, they have a direct funding relationship with FTA, States do not review their grant applications, States do not review their NTD reports, and States do not provide their oversight.

A few of these commenters only supported the requirement that States draft and certify safety plans on behalf of open door Section 5310 and Section 5311 subrecipients. A couple of commenters supported the requirement that a State draft and certify safety plans on behalf of small Section 5307 providers operating 100 or fewer vehicles, as long as the final rule clarifies that the “100 vehicles in revenue service” criteria applies only to Section 5307 recipients, not Section 5310 or Section 5311 recipients.

Response:

FTA notes that 49 U.S.C. 5329(d)(3)(B) provides that States may draft or certify safety plans on behalf of “small public transportation providers” that receive Section 5307 funds, even though, for recipients in large urbanized areas, no funding relationship exists between the States and those small Section 5307 recipients. In response to comments and to ensure consistency across FTA's safety rules and Transit Asset Management rule, FTA is defining “small public transportation provider” to mean “a recipient or subrecipient of Federal financial assistance under 49 U.S.C. 5307 that has one hundred (100) or fewer vehicles in peak revenue service and does not operate a rail fixed guideway public transportation system.” A small Section 5307 provider may opt to draft and certify its own safety plan.

FTA notes that it received numerous comments requesting reduced requirements for small public transportation providers. Given their limited resources, FTA believes that a reduction in requirements for small public transportation providers is appropriate, and to that end, FTA eliminated Safety Assurance requirements for all small public transportation providers under 49 CFR 673.27(a).

2.2. Other Comments

Comments:

One commenter expressed a concern about potential conflicts of interest regarding the drafting and certifying of safety plans. This commenter stated that if a State drafts and certifies a safety plan on behalf of a transit operator, and if the State is also the grant manager for the transit agency using the safety plan, then the State may monitor compliance with the safety plan that it drafted through grant compliance reviews. The commenter suggested that this situation may create a conflict of interest, similar to the conflict of interest that would arise if an SSOA drafted and certified a safety plan on behalf a rail transit agency subject to its jurisdiction.

One commenter asked whether a small transit provider may continue to use its safety plan drafted by its State if it grows to a size where it no longer would be considered small. In this scenario, the commenter asked how much time the transit provider would have to draft and certify a new safety plan.

One commenter recommended that FTA clarify the definition of the term “State” so that SSOAs would not draft or develop a transit agency's safety plan if a conflict of interest exists. Additionally, the commenter suggested adding the following language at the end of section 49 CFR 673.11: “the State Safety Oversight Agency cannot be involved in the development of the Public Transportation Agency Safety Plans they are charged with overseeing.”

Response:

FTA disagrees with the commenter who suggested that a potential conflict of interest would exist if a State drafted and certified a safety plan on behalf of a small transit provider. The funding relationships created by Congress differ from the new safety relationships in 49 U.S.C. 5329(d). From a federal perspective, the State has no role in safety enforcement or oversight of small Section 5307 providers. For rail transit agencies, the SSOAs serve in a different, independent role, and they are required by 49 U.S.C. 5329(e) to provide enforcement. Moreover, as a legal matter, the statutory provisions of 49 U.S.C. 5329(d) require States to draft and certify safety plans on behalf of small Section 5307 providers.

If a transit agency grows in size so that it no longer is considered “small,” then it would have one year to draft and certify its own safety plan. The safety plan developed by the State would remain in effect until the transit agency drafts its own safety plan.

Finally, FTA does not agree that the rule text should be clarified to distinguish between a State's role and an SSOA's role in the development and certification of safety plans. The rule provides that a State must draft and certify safety plans only on behalf of small public transportation providers that do not operate rail service, and that an SSOA must review and approve a rail transit agency's safety plan.

3. Small Transit Providers May Draft and Certify Their Own Safety Plans

Comments:

Many commenters asserted that, when a transit agency “opts out” of the state-wide safety plan and drafts and certifies its own plan, then the final rule should clarify that the State has no further obligation related to the safety plan.

One commenter observed that the “opt out” provision places the decision on a State's responsibilities in the hands

of its subrecipients instead of the State, which is where that responsibility exists in the context of funding relationships. The commenter recommended that FTA clarify in the final rule that the State is responsible for its own safety plan and for those of its subrecipients, and that the determination of whether the State will draft plans for its subrecipients remains at the discretion of the State.

Response:

If a transit agency “opts out” and decides to draft and certify its own safety plan, then the State has no further responsibility regarding that safety plan and the transit agency may seek guidance and technical assistance directly from FTA. FTA disagrees with the commenter who suggested that States should have the discretion to draft and certify safety plans. In an effort to reduce the administrative and financial burdens of small public transportation providers, and given the statutory requirements of 49 U.S.C. 5329(d), FTA is requiring States to draft and certify safety plans on behalf of small Section 5307 recipients and subrecipients. FTA is providing those recipients and subrecipients with the discretion to “opt out” of this arrangement (however, the State will not have the option to “opt out,” as this discretion lies with the small transit operator).

4. Direct and Designated Recipients Drafting and Certifying Safety Plans on Behalf of Smaller Transit Providers

Comments:

Several commenters responded to FTA's question about whether a Section 5310 recipient should draft and certify their own safety plans if they are direct recipients, instead of having the States draft and certify their safety plans on their behalf. Many commenters stated that the designated or direct recipient should have this responsibility for themselves, given the fact that they do not receive their funds through the State under recent changes to the Section 5310 program under the FAST Act. One commenter supported the idea of having designated recipients draft and certify their own safety plans, as well as their subrecipients, only if the plans are based on templates provided by FTA. One commenter asked whether the State or the transit agency should be responsible for reviewing safety plans when a subrecipient receives funding through the transit agency and not the State.

Response:

FTA appreciates the comments that it received regarding this issue. In light of the public comments that FTA received regarding the application of this rule to Section 5310 and Section 5311 recipients, FTA is deferring regulatory action regarding the applicability of this rule to operators of public transportation systems that only receive Section 5310 and/or Section 5311 funds. Further evaluation of information and safety data related to these operators is needed to determine the appropriate level of regulatory burden necessary to address the safety risk presented by these operators. At this time, the rule does not apply to an operator of a public transportation system that only receives Federal financial assistance under 49 U.S.C. 5310, 49 U.S.C. 5311, or both 49 U.S.C. 5310 and 49 U.S.C. 5311. Consequently, States are not required to draft and certify safety plans on behalf of operators of public transportation systems that only receive Section 5310 and/or Section 5311 funds.

Consistent with the statutory provisions of 49 U.S.C. 5329(d)(3)(B), a State still has the responsibility of drafting and certifying safety plans on behalf of small Section 5307 recipients, unless they opt to draft and certify their own safety plans. To ease the burdens with these efforts, FTA is issuing a safety plan template with today's rule to assist States and smaller operators with the drafting and certification of their plans.

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

1. General Comments

Comments:

A couple of commenters suggested that the final SSO rule and the proposed PTASP rule are contradictory in terms of implementation deadlines, and they recommended that FTA allow an SSPP to remain in effect until an SSOA has approved a rail transit agency's new PTASP. One of these commenters stated that FTA should remove all requirements involving SSPPs from the final PTASP rule. One commenter asked if a rail transit agency must keep its SSPP and reference it in its PTASP.

Response:

FTA acknowledges that the compliance dates in the final SSO rule at 49 CFR part 674 differ from those in the PTASP rule at 49 CFR part 673. These compliance dates are creations of statute. Pursuant to 49 U.S.C. 5329(e)(3), each State must have an SSO program compliant with the new SSO rule within three years after the effective date of that final rule. Pursuant to 49 U.S.C. 5329(d)(1), each operator of a public transportation system must have a PTASP compliant with the new PTASP rule within one year after the effective date of this final rule.

Although these compliance dates differ, an SSOA can apply the regulatory requirements of the PTASP rule and ultimately review and approve a PTASP based on those requirements, even if it has not fully developed its new program standard in accordance with the new SSO rule. As demonstrated through the SSPP-PTASP Crosswalk that FTA posted to this rulemaking docket, the substantive elements of the old SSPPs carry over into the SMS portions of PTASPs. The same basic requirements exist, albeit, reshuffled into a different format that is intended to more effectively address safety risks. Finally, the staff of SSOAs have been taking training courses in SMS in accordance with the interim rule for the Public Transportation Safety Certification Training Program. Given the above, FTA expects each SSOA to review and approve each PTASP of a rail transit agency within its jurisdiction, even if it has not fully complied with the new SSO rule at 49 CFR part 674.

Ultimately, the SSPP will become obsolete one year after the effective date of this final rule, and an agency's PTASP will replace the SSPP. However, if a transit agency would like to maintain the SSPP and use it as a reference document, it may do so. FTA only will conduct oversight, including Triennial and State Management Reviews, to ensure that a transit agency's PTASP complies with this rule, not its former SSPP. Given the April 15, 2019 deadline for updated SSO Programs under 49 CFR 674.11, FTA believes that the effective date and compliance date of today's final rule will provide rail transit agencies and their SSOAs with more time to harmonize their safety plans and program standards before they are finalized.

2. One-Year Compliance Timeframe

Comments:

Several commenters provided input on the one-year compliance timeframe for the proposed rule. One commenter expressed support for the one-year compliance period, but stated that transit agencies may need more than one year to draft their safety plans, hire and train the necessary personnel, and certify the plan.

Some commenters stated that FTA should provide a longer compliance/implementation period for the rule. Several of these commenters remarked that the proposed compliance period is aggressive and may lead to rushed or subpar safety plans with limited SMS training for staff. The commenters also suggested that a longer compliance period may be necessary given the requirements for a signature from the Accountable Executive and approval from a Board of Directors. One commenter suggested that,

notwithstanding Federal requirements, State legislatures may not be able to amend State safety requirements prior to the compliance deadline for this rule, which may force some transit agencies to create two safety plans for purposes of Federal and State law, or be in non-compliance with the Federal and State laws.

Most commenters provided suggestions for an alternative compliance deadline, with many commenters suggesting that FTA extend the compliance deadline to two years. Several commenters suggested that FTA extend the compliance deadline or allow for a multi-part implementation or a transitional grace period for agencies to show progress with the development of their safety plans. A couple of commenters recommended that FTA extend the compliance period until one year after FTA issues templates for safety plans. One commenter stated that the compliance deadline for this rule should be tied to the finalization of the National Public Transportation Safety Plan. Several commenters also suggested aligning the compliance deadline of this rule with the two-year compliance deadline for the Transit Asset Management rule.

Response:

As a preliminary matter, FTA notes that many commenters referred to the “implementation” deadline of this final rule, as opposed to the rule's “compliance” deadline. The compliance deadline is the date by which transit operators and States must comply with the final rule and have a safety plan in place. FTA emphasizes that this rule implements a statutory requirement that each operator of a public transportation system draft and certify a safety plan within one year after the effective date of this final rule. The safety plan must include all of the information, processes, and procedures as outlined in this rule. FTA expects each operator of a public transportation system to “implement” the processes and procedures outlined in its safety plan after it drafts and certifies that plan in accordance with this rule. That implementation should take place continually, and the implementation, particularly the implementation of SMS, should mature over time. But to comply with this rule, each operator of a public transportation system must draft and certify a safety plan within one year after the effective date of this final rule—that one-year deadline is the “compliance” deadline for this rule.

The one-year compliance deadline was created by the statutory provisions of 49 U.S.C. 5329(d)(1), and FTA does not have the flexibility to extend it. Nevertheless, FTA does not expect that all transit agencies will have fully implemented SMS one year after the effective date, but rather, FTA expects that transit agencies will have the processes and procedures put in place for SMS, including hazard identification, risk analysis, and the Safety Assurance procedures as outlined in Subpart C of this rule. The full implementation of SMS may take longer, in some cases years to fully mature in large multi-modal transit agencies. FTA is providing more guidance on how a transit agency may fully implement a mature SMS in the National Public Transportation Safety Plan, and it intends to provide additional guidance and technical assistance to the industry in the future.

FTA appreciates the comments that it received suggesting that transit agencies may need more than one year to certify compliance with the rule. Although, by statute, the compliance deadline must be one year from the rule's effective date, FTA has discretion on setting the effective date itself. In response to the public comments and in an effort to assist the industry with meeting the requirements of this rule, FTA is making the effective date one year after its publication date. As a result, transit agencies will have a total of two years (one year from the publication date to the effective date, plus another year from the effective date to the compliance deadline) to certify that they have safety plans meeting the requirements of 49 CFR part 673.

F. Certification of Safety Plans

Comments:

Several commenters requested additional information on how agencies may certify compliance with this rule and what this certification means. One commenter remarked that the rule contains neither a definition nor an explanation of the term “certification” or “certify.” Two commenters questioned how an agency may certify their safety plans if FTA may adopt additional performance measures in the future.

One commenter expressed concern with self-certification, asserting that self-certification is not a reliable method for establishing effective safety management by public transportation providers. This commenter suggested that each transit agency should submit its safety plan to FTA for approval and certification so that FTA could verify that the plan satisfies the statutory and regulatory requirements.

Several commenters expressed concern over the one-year certification timeline, indicating that one year may not be enough time for transit agencies to certify compliance with the rule. One commenter suggested that FTA lengthen the certification period to two years, which would provide agencies with additional time and align the certification deadline for the compliance deadline for developing transit asset management plans as outlined in the TAM rule.

One commenter urged FTA to clarify the process by which a State should certify a safety plan on behalf of a Section 5310, Section 5311, or small Section 5307 recipient or sub-recipient. Additionally, the commenter asked who would conduct oversight on a safety plan if a small transit agency opts out of any plan developed by a State.

Response:

As a statutory matter, pursuant to 49 U.S.C. 5329(d)(1), each recipient or State must “certify” that the recipient or State has established a comprehensive agency safety plan. Pursuant to 49 U.S.C. 5323(n), each recipient must submit to FTA a list of “Certifications and Assurances” as part of the grant award and oversight process during each fiscal year. FTA will use this existing Certifications and Assurances process to satisfy the statutory requirement for safety plan certifications. FTA has added a section to the list of Certifications and Assurances to address safety. FTA will issue future guidance on how States can certify safety plans and transit asset management plans on behalf of transit operators.

To the extent that FTA amends the National Public Transportation Safety Plan in the future, or any of its regulatory requirements in general, FTA will amend the annual list of Certifications and Assurances, as necessary.

FTA appreciates concerns regarding the self-certification process; however, FTA does not have the resources to collect and review hundreds of safety plans each fiscal year. Consequently, FTA intends to utilize its existing risk-based approach to oversight by using its Triennial Reviews and State Management Reviews to ensure compliance with this rule. FTA notes that it does not need to wait to review a safety plan every three years. FTA may review an agency's safety plan whenever it deems necessary.

As noted above, in response to the public comments and in an effort to assist the industry with meeting the requirements of this rule, FTA is making the effective date one year after its publication date. As a result, transit agencies will have a total of two years from the rule's publication date to certify that they have safety plans meeting the requirements of 49 CFR part 673.

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

Comments:

Pursuant to the proposed provisions at 49 CFR 673.13(a), each SSOA would be required to review and approve a PTASP developed by a rail fixed guideway system. Some commenters expressed concern with the one-year deadline that a transit agency has to certify its PTASP and the three-year deadline that an SSOA has to comply with the new SSO rule at 49 CFR part 674. One commenter recommended that FTA should allow rail transit agencies to certify compliance with the PTASP rule one year after the relevant SSOA develops its program standard pursuant to 49 CFR part 674. Several commenters questioned whether a rail transit agency must submit its PTASP to the SSOA by one year after the PTASP final rule's effective date, or whether the SSOA must approve the agency's PTASP by one year after the PTASP rule's effective date. Several commenters urged FTA to clarify whether SSOAs must update their program standards prior to approving rail transit safety plans since most SSOAs will be operating under a program standard based on 49 CFR part 659 when the PTASP final rule becomes effective.

A few commenters requested FTA to clarify the role of an SSOA with respect to PTASP certification. One commenter suggested that a PTASP should not be executed without SSOA approval. Several commenters suggested that FTA develop guidance for obtaining SSOA approval and a resolution process for situations in which a rail transit agency certifies compliance and then an SSOA does not approve the safety plan. Several commenters requested clarification of an SSOA's approval power and role, with a couple of these commenters encouraging FTA to modify the rule's text to make clear that SSOAs only have authority over rail transit systems. One commenter recommended that FTA require transit agencies that operate rail and bus service to develop separate safety plans for rail and bus service so that it is easier for SSOAs to approve the plans for rail safety.

A few commenters stated that FTA should define the SSOA's role and responsibilities in approving plans that contain modes of service not subject to state specific oversight rules, such as rules for bus transit. The commenters argued that while SSOAs are responsible for the review and approval of rail transit plans, FTA's proposed rule only specifies that bus agencies will self-certify.

Several commenters expressed concerns over the requirement to have the transit agency's Board of Directors and the SSOA approve the safety plan, fearing that this two-tiered review process could subject plans to conflicting evaluation criteria, which could weaken plans and cause delays in implementation.

One commenter suggested that FTA should clarify that SSPPs will become obsolete.

Response:

As a preliminary matter, FTA notes that the comments above regarding state safety oversight are more appropriately addressed through FTA's SSO rule at 49 CFR part 674, which governs the activities of SSOAs. FTA's PTASP rule governs the activities of operators of public transportation systems. Nevertheless, to provide the industry with additional clarification regarding the role of SSOAs, FTA provides the responses below.

Through FTA's new SSO rule at 49 CFR part 674, each SSOA has a great deal of flexibility regarding the timing of its approval of a PTASP within its jurisdiction. Pursuant to the new rule, each SSOA is obliged to “adopt and distribute a written SSO program standard” consistent with the National Public Transportation Safety Plan and the PTASP rule (49 CFR 674.27(a)); “explain” an SSOA's “role . . . in overseeing” a rail transit agency's “execution of its Public Transportation Agency Safety Plan” (49 CFR 674.27(a)(4)); and “describe the process whereby the SSOA will receive and evaluate all material submitted under the signature of [a rail transit agency's] accountable executive” (49 CFR 674.27(a)(4)). Given these requirements, an SSOA could choose to “approve” a PTASP at virtually any point in time, and as often as it might like. FTA expects each SSOA to develop its program standard in consultation with the rail transit agencies within the SSOA's jurisdiction. FTA intends to provide deference to the State decision makers on this matter.

Optimally, an SSOA would have its program standard in place before reviewing the merits of a rail transit agency's PTASP, but it is not necessary, as a matter of law. An SSOA still operating under the old SSO rule at 49 CFR part 659 and transitioning to the new SSO rule at 49 CFR part 674 still can judge the adequacy of a rail transit agency's PTASP by applying the standards and regulatory requirements set forth in the new rules at 49 CFR parts 673 and 674.

Through the new SSO rule, FTA addresses scenarios in which an SSOA does not approve a PTASP. Pursuant to 49 CFR 674.29(c), “In an instance in which an SSOA does not approve a Public Transportation Agency Safety Plan, the SSOA must provide a written explanation, and allow the [rail transit agency] an opportunity to modify and resubmit its . . . Plan for the SSOA's approval.” This mechanism should lead to negotiations that resolve disagreements between an SSOA and a rail transit agency. In those instances in which an SSOA and a rail transit agency continue to disagree in good faith, FTA may step into the dispute to help the issue. If a rail transit agency is comfortable certifying its own compliance with the rules, but it receives objections or disapprovals from its SSOA, then FTA could take regulatory enforcement action under the Public Transportation Safety Program rule at 49 CFR part 670 (see

https://www.gpo.gov/fdsys/pkg/FR-2016-08-11/pdf/2016-18920.pdf

), as necessary and appropriate, to ensure compliance with the PTASP rule.

It is abundantly clear in 49 U.S.C. 5329(e) and FTA's new SSO rule at 49 CFR part 674 that an SSOA only has jurisdiction over a “rail fixed guideway public transportation system” that is not subject to regulation by FRA. Consequently, when reviewing a PTASP for an agency that operates rail fixed guideway public transportation and bus public transportation, an SSOA should focus its review on the rail fixed guideway public transportation system only, given the fact that as a legal matter, Federal law does not give an SSOA the authority to regulate the safety of bus systems. Unless provided by State law, an SSOA has no legal authority to compel a transit agency to change its safety practices for bus operations. FTA disagrees with the commenters who believe that FTA should require separate safety plans for rail and bus; FTA will defer to each transit agency to decide whether it is more appropriate for their system to have a single plan covering rail and bus (and other modes of transit) or whether to have multiple plans for each mode of transit.

Finally, FTA re-emphasizes that every operator of a public transportation system subject to this rule, or State, must certify compliance with this rule, whether it provides rail transit service, bus transit service, or other modes of transit service. SSPPs will become obsolete one year after the effective date of this final rule.

H. Safety Performance Targets and Performance-Based Planning

Comments:

Pursuant to the proposed provisions at 49 CFR 673.15, each

transit agency or State would be required to make its safety performance targets available to States and MPOs to aid in the planning process, and each transit agency or State would be required to coordinate with States and MPOs in the selection of safety performance targets.

Several commenters generally supported the coordination provisions. One commenter supported flexibility in the target-setting process and coordination of targets between the State, regional, and transit agency levels. One commenter was encouraged that FTA acknowledged the vital role of the planning process in safety management and recommended that the Transit Asset Management Plans also be included in the coordination process.

A couple of commenters asked FTA to explain the purpose of communicating safety performance targets to States and MPOs. One commenter asked FTA to clarify the MPO's role in the planning process, stating that if an MPO has any approval or review authority of safety performance targets, then an MPO should be required to have the same safety expertise and training as an SSOA.

Several commenters asked whether a transit agency only would be required to make its targets available to a State and an MPO, or whether it also would be required to make the supporting performance data pertaining to those targets available to a State and an MPO. One commenter suggested that FTA avoid creating this requirement or to make a general requirement that transit agencies cooperate with States and MPOs in the planning process.

Several commenters expressed concerns with requiring coordination among planning organizations. They argued that this coordination would be unreasonably burdensome on some transit agencies. Several commenters argued that these provisions are not required by statute and that MPOs generally do not operate transit service and do not have transit operations and safety expertise or experience. Several commenters suggested that coordination should be revised to a “consultation” requirement. One commenter recommended that FTA delete these requirements, and that planning coordination should be encouraged through guidance instead.

Several commenters requested clarification on how a State or transit agency should coordinate with MPOs and States to select safety performance targets. One of these commenters argued that if by “coordination,” FTA's intent is that a transit agency share its PTASP (which will include performance targets) with States and MPOs, then FTA should clearly state such a requirement. Additionally, the commenter stated that the proposed rule did not specify which State agencies, other than MPOs, transit agencies are expected to coordinate with.

Several commenters asked which accountability measures will be used to ensure that coordination is occurring “to the maximum extent practicable.” One commenter asked what recourse an MPO would have if the State or transit operator chooses not to coordinate on target setting, claiming there is not a “practicable” way to do so. The commenter argued that the rule must recognize that target setting across multiple functions and dimensions would require an extremely robust degree of coordination and suggested removing that phrase.

One commenter stated that the proposed rule does not identify the responsibilities of the State in the planning process. Another commenter asked whether States and MPOs would be required to keep confidential any information related to safety performance targets.

One commenter stated that it is unclear how the development of performance targets at the State and MPO levels will impact individual transit agency targets in the future, particularly when FTA may develop safety performance targets under a separate NPRM. This commenter also said it is unclear how the State and MPO safety performance targets would impact individual transit agency safety plans, as these are to be determined at the local level by each individual transit agency.

Response:

FTA appreciates the comments that it received in support of its proposed safety performance target provisions. FTA emphasizes that these requirements are rooted in the statutory provisions of 49 U.S.C. 5329(d)(1)(E), which requires each operator of a public transportation system subject to this rule to include in its PTASP “performance targets based on [FTA's] safety performance criteria and state of good repair standards.” Moreover, the statutory provisions of 49 U.S.C. 5303(h)(2)(B) and 49 U.S.C. 5304(d)(2)(B) further require that “[s]election of performance targets by a metropolitan planning organization shall be coordinated, to the maximum extent practicable, with providers of public transportation to ensure consistency with sections . . . 5329(d)” and “[s]election of performance targets by a State shall be coordinated with the relevant metropolitan planning organizations to ensure consistency to the maximum extent practicable.” Since these activities are required by law, FTA will not merely encourage these practices through guidance, as some commenters requested. FTA will require these practices as a legal matter. Moreover, FTA emphasizes that the PTASP rule only governs the activities of operators of public transportation systems. The recent FTA/FHWA joint planning rule 23 CFR part 450 governs the planning activities of transit agencies, States, and MPOs. FTA refers readers to the Final Rule dated May 27, 2016, for further guidance on the roles and responsibilities of States and MPOs in the planning process (see

https://www.gpo.gov/fdsys/pkg/FR-2016-05-27/pdf/2016-11964.pdf

).

In response to the question as to whether a transit agency only would be required to make its safety performance targets available to a State and an MPO, or whether it also would be required to make the supporting performance data pertaining to those targets available to a State and an MPO, FTA defers to the State and local processes developed by States and MPOs. FTA only requires that transit agencies coordinate with States and MPOs to the maximum extent practicable to assist those States and MPOs with the selection of Statewide and regional safety performance targets. At a minimum, FTA requires each operator of a public transportation agency to make its safety performance targets available to States and MPOs.

To ensure that a transit agency complies with these requirements, FTA intends to utilize its existing Triennial Reviews and State Management Reviews. FTA intends to ensure that MPOs comply with the joint planning rule through the existing MPO certification process.

Finally, FTA notes that it is not developing safety performance targets for the industry—it is developing safety performance measures by which each operator of a public transportation system, and each State and MPO, must set targets. These targets are intended to guide transit agencies, States, and MPOs with the prioritization of transportation investments. The goal is for the prioritization of capital investments that help meet safety performance targets and state of good repair targets.

I. Safety Management Systems

1. Safety Management Policy: General Comments

Comments:

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

Response:

FTA appreciates the support from the transit industry on Safety Management Systems, and specifically the Safety Management Policy provisions of 49 CFR 673.23.

1.1. Safety Management Policy Statement

Comments:

Several commenters encouraged FTA to allow for maximum flexibility in safety management policy statements and urged FTA to allow deviation in policy adoption whenever consistent with the overarching principles of SMS.

A few commenters expressed concern regarding the inclusion of safety performance targets in the safety management policy statement. One commenter suggested that it is inappropriate to include specific safety performance targets in an overarching safety management policy statement and suggested deleting the requirement from the rule. This commenter also suggested that FTA replace the term SMS with PTASP where references to safety performance targets are made. Another comment

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