Public Transportation Agency Safety Plan, 6343-6371 [2016-02017]
Agencies
[Federal Register Volume 81, Number 24 (Friday, February 5, 2016)] [Proposed Rules] [Pages 6343-6371] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 2016-02017] [[Page 6343]] Vol. 81 Friday, No. 24 February 5, 2016 Part II Department of Transportation ----------------------------------------------------------------------- Federal Transit Administration ----------------------------------------------------------------------- 49 CFR Part 673 Public Transportation Agency Safety Plan; National Public Transportation Safety Plan; Availability; Proposed Rule and Notice Federal Register / Vol. 81, No. 24 / Friday, February 5, 2016 / Proposed Rules [[Page 6344]] ----------------------------------------------------------------------- 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: Notice of Proposed Rulemaking (NPRM): request for comments. ----------------------------------------------------------------------- SUMMARY: The Federal Transit Administration (FTA) is proposing requirements for Public Transportation Agency Safety Plans as authorized by Section 20021 of the Moving Ahead for Progress in the 21st Century Act (MAP-21). This proposed rule would require operators of public transportation systems that receive Federal financial assistance under 49 U.S.C. Chapter 53 to develop and implement Public Transportation Agency Safety Plans based on the Safety Management System approach. Development and implementation of agency safety plans will help ensure that public transportation systems are safe nationwide. FTA seeks public comments on all aspects of this proposed rule, including information related to its benefits and costs, as well as alternative approaches that may more cost-effectively satisfy the statutory requirements and help ensure the safety of the nation's public transportation system. DATES: Comments must be received by April 5, 2016. Any comments filed after this deadline will be considered to the extent practicable. FTA will hold webinars to explain the proposed rule. Interested stakeholders should check FTA's Web site for days and times of webinars: https://www.fta.dot.gov/calendar.html. Additionally, FTA will hold a listening session on Wednesday, March 16, 2016, in conjunction with the American Public Transportation Association's Legislative Conference. The listening session will be held at the JW Marriott, 1331 Pennsylvania Avenue NW., Washington, DC 20004 at 9:30 a.m. ADDRESSES: Please submit your comments by only one of the following methods, identifying your submission by Docket Number (FTA-2015-0021) or Regulatory Identification Number (RIN) (2132-AB23).Federal eRulemaking Portal: Submit electronic comments and other data to https://www.regulations.gov. U.S. Mail: Send comments to Docket Operations, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Room W12-140, Washington, DC 20590-0001. Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building, Ground Floor, at 1200 New Jersey Avenue SE., Washington, DC, between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. Fax: Fax comments to Docket Operations, U.S. Department of Transportation, at (202) 493-2251. Instructions: You must include the agency name (Federal Transit Administration) and Docket Number (FTA-2015-0021 for this notice or Regulation Identifier Number (RIN) 2132-AB23), at the beginning of your comments. If sent by mail, submit two copies of your comments. Due to security procedures in effect since October 2001, mail received through the U.S. Postal Service may be subject to delays. Parties submitting comments should consider using an express mail firm to ensure the prompt filing of any submissions not filed electronically or by hand. If you wish to receive confirmation that FTA received your comments, you must include a self-addressed stamped postcard. All comments received will be posted without change to https://www.regulations.gov, including any personal information provided. Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the United States Department of Transportation's (DOT) Privacy Act system of records notice for the DOT Federal Docket Management System (FDMS) in the Federal Register published on December 29, 2010 (75 FR 82132) at https://www.gpo.gov/fdsys/pkg/FR-2010-12-29/pdf/2010-32876.pdf. FOR FURTHER INFORMATION CONTACT: For program matters, contact Brian Alberts, Office of Transit Safety and Oversight, (202) 366-1783 or Brian.Alberts@dot.gov. For legal matters, contact Michael Culotta, Office of Chief Counsel, (212) 668-2178 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. Statutory Authority C. Summary of Major Provisions D. Costs and Benefits (Table) II. Background A. History B. General Requirements C. The Safety Management Systems (SMS) Approach D. The Role of the Accountable Executive With Public Transportation Agency Safety Plans and Transit Asset Management Plans III. Advance Notice of Proposed Rulemaking and Response to Relevant Comments A. Scope and Applicability of Public Transportation Agency Safety Plans B. Safety Management Systems C. Public Transportation Agency Safety Plan Development, Certification, and Oversight D. Role of the Board of Directors (or Equivalent Authority) and the Chief Safety Officer E. Coordination of Public Transportation Agency Safety Plan With Other MAP-21 Programs and Plans 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 the complexity of public transportation service, the condition and performance of transit equipment and facilities, turnover in the transit workforce, and the quality of procedures, training, and supervision, 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 1960-2013,'' at https://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_02_01.html_mfd; and ``Table 1-40: U.S. Passenger Miles (Millions) 1960-2013,'' at https://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_01_40.html. --------------------------------------------------------------------------- This Notice of Proposed Rulemaking (NPRM) proposes 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 recently was reauthorized by the Fixing America's Surface Transportation Act (Pub. L. 114-94; December 4, 2015) and codified at 49 U.S.C. 5329(d), to strengthen the safety of public transportation systems that receive Federal financial assistance under Chapter 53. This NPRM proposes requirements for the adoption of Safety Management Systems (SMS) principles and methods; the development, [[Page 6345]] certification, and update of Public Transportation Agency Safety Plans; and the coordination of Public Transportation Agency Safety Plan elements with other FTA programs and proposed rules, as specified in 49 U.S.C. 5329. B. Statutory Authority In Section 20021 of MAP-21, 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. FTA also is required to issue a rule designating certain Urbanized Area Formula Program recipients under 49 U.S.C. 5307 that may have their Public Transportation Agency Safety Plans drafted or certified by a State. 49 U.S.C. 5329(d)(3)(B). Further, FTA must allow States to draft and certify Public Transportation Agency Safety Plans for Rural Area Formula Program recipients and subrecipients under 49 U.S.C. 5311. 49 U.S.C. 5329(d)(3)(A). C. Summary of Major Provisions The proposed rule would add a new Part 673, ``Public Transportation Agency Safety Plans,'' to Title 49 of the Code of Federal Regulations. The rule would implement the requirements of 49 U.S.C. 5329(d). One year after FTA issues a final rule to carry out Section 5329(d), each State, local governmental authority, and 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 and implemented a comprehensive Public Transportation Agency Safety Plan. 49 U.S.C. 5329(d)(1). FTA proposes that large transit providers that are direct recipients of Section 5307 funds would develop their own plans, have the plans approved by their Boards of Directors (or equivalent authority), and certify to FTA that those plans are in place. FTA also proposes that transit providers which receive funds under the Enhanced Mobility of Seniors and Individuals with Disabilities Program authorized by 49 U.S.C. 5310 (which tend to be much smaller transit providers) and transit providers that receive funds under the Rural Area Formula Program authorized by 49 U.S.C. 5311, as well as small public transportation providers as defined in this NPRM, may have their plans drafted or certified by the State in which they operate. At a minimum, and consistent with 49 U.S.C. 5329(d), FTA proposes that each Public Transportation Agency Safety Plan must: Include a Safety Management System consisting of four main pillars: (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, and the state of good repair standards established in the regulations that implement the National Transit Asset Management System and are included in 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)). FTA proposes that 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 its State Safety Oversight Rule at 49 CFR part 659. 49 CFR 673.11(a)(6). A transit agency would be able to develop one Public Transportation Agency Safety Plan for all modes of service, or it may develop a Public Transportation Agency Safety Plan for each mode of service not subject to safety regulation by another Federal entity. 49 CFR 673.11(b). A transit agency would be required to 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 compliant with 49 CFR part 659 as of October 1, 2012, would be able to keep that plan in effect until one year after the effective date of the final rule. 49 CFR 673.11(e). Agencies that operate passenger ferries regulated by the United States Coast Guard (USCG) or commuter rail service regulated by the Federal Railroad Administration (FRA) would not be required to develop agency safety plans for those modes of service. 49 CFR 673.11(f). A State or transit agency would be required to make its safety performance targets available to States and Metropolitan Planning Organizations to aid in the planning process, and to the maximum extent practicable, a State or transit agency would be required to coordinate with States and Metropolitan Planning Organizations in the selection of State and MPO safety performance targets. 49 CFR 673.15. On an annual basis, a transit agency or State would be required to certify its compliance with this rule. 49 CFR 673.13. D. Costs and Benefits (Table) FTA has determined that this proposed rule likely is ``economically significant'' under Executive Order 12866, in that it may lead to transit agencies making investment and prioritization decisions related to mitigation of safety risks that would result in economic impacts that could exceed $100 million in a year. However, as discussed in greater detail below, FTA was unable to quantify the potential impacts of this rule beyond the costs for transit agencies to develop and implement Public Transportation Agency Safety Plans. FTA was able to estimate costs of approximately $86 million in the first year, and $70 million per year thereafter. These costs result from developing and certifying safety plans, documenting the SMS approach, implementing SMS, and associated recordkeeping. The estimated costs do not include 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. The annualized cost of proposed requirements is estimated to be approximately $71 million. FTA could not estimate the benefits of the proposed rule. To estimate safety benefits, one would need to understand the exact causes of the accidents and the factors that may cause future accidents. This information is generally unknown in this sector, given the infrequency and diversity of the type of safety incidents 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, FTA conducted a breakeven analysis that compares the estimated costs (absent the cost of mitigations beyond those specifically required by the rule such as training) to a pool of potential safety benefits. The pool of potential safety benefits is an estimate of the cost of all bus and rail incidents over a future 20-year period. The estimate is an [[Page 6346]] extrapolation of the total cost of bus and rail incidents that occurred from 2010 to 2014. As Table 1 below shows, the amount of incident reduction needed to breakeven with estimated costs is low. However, benefits of SMS will primarily result from mitigating actions, which are largely not accounted for in this analysis. FTA has not estimated the benefits of implementing SMS 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. It is plausible that these activities alone could produce accident reductions that surpass the breakeven level, though even greater reductions could be achieved in concert with other mitigating actions. This analysis assumes that benefits are realized from reducing both rail and bus incidents after adjusting for the estimated breakeven threshold for the proposed State Safety Oversight and Safety Training Rules (RINs 2132-AB19 and 2132-AB25 respectively), to which the rail agencies also will be subject when finalized. Table 1--Summary of Breakeven Analysis \2\ -------------------------------------------------------------------------------------------------------------------------------------------------------- Current dollar value 7% Discounted value 3% Discounted value -------------------------------------------------------------------------------------------------------------------------------------------------------- Bus Incidents (20-Year Estimate)... $86,999,489,120...................... $40,894,178,605...................... $58,084,884,054. Rail Incidents (20-Year Estimate).. $37,680,410,444...................... $17,711,706,703...................... $25,157,185,334. Total Pool of Benefits (20-Year $124,679,899,564..................... $58,605,885,309...................... $83,242,069,388. Estimate). Estimated Costs (20-Year Estimate). $1,407,680,883....................... $752,319,890......................... $1,050,876,643. Benefits and Costs of Mitigating Not Estimated........................ Not Estimated........................ Not Estimated. Actions. Estimated Cost (Annualized)........ ..................................... $71,013,675.......................... $70,635,417. Breakeven Threshold Including Bus ..................................... 1.28%................................ 1.26%. and Rail. -------------------------------------------------------------------------------------------------------------------------------------------------------- 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 NPRM addresses the Public Transportation Agency Safety Plan within the Public Transportation Safety Program authorized under 49 U.S.C. 5329. --------------------------------------------------------------------------- \2\ The costs in this table and the breakeven threshold do not account for actions by agencies to mitigate or eliminate safety risks identified through implementation of their safety plans (beyond those specifically required by the rule, such as training). --------------------------------------------------------------------------- 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 will 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 the National Public Transportation Safety Plan, the Safety Certification Training Program, and the Public Transportation Agency Safety Plans. 78 FR 61251. Through the ANPRM, FTA also sought public comment on transit asset management, given FTA's statutory directive to develop and implement a Transit Asset Management System under 49 U.S.C. 5326. FTA is addressing the National Public Transportation Safety Plan, the Safety Certification Training Program, and the Transit Asset Management System through separate rulemakings and guidance documents. Each of these programs will contribute to the establishment of a comprehensive framework that will help to ensure public transportation systems are safe nationwide. In most instances, the requirements of the Public Transportation Agency Safety Plans will apply to each recipient and subrecipient of FTA funding, regardless of the mode(s) of transit provided. However, two provisions limit FTA's regulatory jurisdiction. First, FTA is prohibited from establishing safety performance standards for rolling stock that is already regulated by another Federal agency. 49 U.S.C. 5329(b)(2)(C)(i). Second, the requirements of the Public Transportation Agency Safety Plans will not apply to rail transit systems to the extent that they are already subject to regulation by FRA. 49 U.S.C. 5329(e)(1) and (e)(2). Further, to the extent that any other Federal agency already regulates the safety of a particular mode of public transportation, FTA does not intend to publish duplicative, inconsistent, or conflicting regulations. Today's proposed rule for establishing and certifying Public Transportation Agency Safety Plans takes into account the size, complexity, and operating environments of applicable recipients. FTA proposes the incorporation of SMS principles and methods to support Public Transportation Agency Safety Plan development and implementation. SMS provides transit agencies flexibility in establishing processes and activities to address safety risks within their agencies in a scalable manner. Until FTA issues a final rule to carry out Section 5329(d), existing system safety and security program plans required of rail fixed guideway systems under 49 CFR part 659 will remain in effect. 49 U.S.C. 5329(d)(2). Within one year of the Public Transportation Agency Safety Plan final rule's effective date, all operators of public transportation systems that receive Chapter 53 funds would be required to draft and certify their Public Transportation Agency Safety Plans, unless a State is otherwise required to do so on behalf of the public transportation provider, in which case, the State also would have one year after the rule's effective date to draft and certify its Public Transportation Agency Safety Plans. Public transportation providers that operate multiple modes of transit service would have the option of preparing separate Public Transportation Agency Safety Plans for each mode, or preparing one Public Transportation Agency Safety Plan for all modes operated by the provider. If separate safety plans are developed for multiple modes under FTA's jurisdiction, each Public Transportation Agency Safety Plan (for example, one for bus service and one for rail transit service) must comply with the final rule. A. History Prior to MAP-21, FTA's authority to require safety plans was limited to rail transit agencies subject to FTA's State Safety Oversight Rule. Under existing 49 CFR part 659, any State that has a rail [[Page 6347]] fixed guideway system not subject to FRA regulation is required to establish a state safety oversight agency, and each state safety oversight agency must require each rail fixed guideway system within its jurisdiction to develop a system safety and a system security program plan. These plans are reviewed and approved by state safety oversight agencies. 49 CFR 659.17. MAP-21 authorized significant changes to FTA's State Safety Oversight Program, and FTA is undergoing a rulemaking to effectuate those changes. The history of 49 CFR part 659, and its relationship to the Public Transportation Safety Program and today's notice, can be viewed in the NPRM for 49 CFR part 674, which is the proposed new location for the State Safety Oversight Rule in the Code of Federal Regulations. See 80 FR 11002, Feb. 27, 2015 (https://www.gpo.gov/fdsys/pkg/FR-2015-02-27/pdf/2015-03841.pdf). In addition to requiring safety and security plans for rail fixed guideway systems, FTA established and currently manages a voluntary Bus Safety Program that has encouraged bus transit agencies to develop system safety program plans to implement safety program activities. The voluntary program has been very well received and has promoted coordination among FTA, the Community Transportation Association of America (CTAA), and the American Public Transportation Association (APTA) to provide technical assistance to bus transit agencies to support system safety program plan development and implementation. Through FTA's Bus Safety Program, more States have recommended that their bus transit agencies develop safety plans using templates provided by FTA through its safety Web site. In addition, a number of States require both rail and bus transit agencies to develop system safety program plans. The aforementioned efforts demonstrate that many transit agencies embrace the concept and benefits of developing safety plans in order to document their safety program activities, as well as ensure commitment from agency executives who often review and sign the safety plan or policy statement. Pursuant to 49 U.S.C. 5329(d), Public Transportation Agency Safety Plans must be drafted and certified by each transit agency regardless of mode, with the exception of transit providers that receive funds under 49 U.S.C. 5311 (Section 5311) and small public transportation providers as defined in this NPRM, which may have their plans drafted and certified by the State. In addition to this statutory requirement, FTA is proposing that the State must draft and certify Public Transportation Agency Safety Plans for operators of public transportation that receive funds under 49 U.S.C. 5310 (Section 5310), in an effort to alleviate the regulatory, administrative, and financial burdens on the small recipients in this program. FTA proposes that a Section 5310, Section 5311, or small public transportation provider may opt to draft and certify their own plan. Today's proposed rule helps advance the regulatory steps taken by FTA and States previously and the voluntary efforts taken by industry associations, States, and transit providers to improve transit safety. B. General Requirements Pursuant to 49 U. S.C. 5329(d)(1), each Public Transportation Agency Safety Plan must include, at minimum: A requirement that the board of directors, or equivalent entity, approve the plan and any updates; Methods for identifying and evaluating safety risks throughout all elements of the recipient's public transportation system; Strategies to minimize the exposure of the public, personnel, and property to hazards and unsafe conditions; A process and timeline for conducting an annual review and update of the plan; Performance targets based on the safety performance criteria and state of good repair standards set out in the National Public Transportation Safety Plan; Assignment of an adequately trained Safety Officer who reports directly to the general manager, president, or equivalent officer of the recipient; and A comprehensive staff training program for operations personnel and personnel directly responsible for safety that includes the completion of a safety training program and continuing safety education and training. C. The Safety Management Systems (SMS) Approach Public transportation is one of the safest modes of travel.\3\ However, public transportation incidents occur, and the potential for catastrophic events remains. In recent years, there have been several major transit accidents that resulted in fatalities, injuries, and significant property damage. From 2004 to 2013, the National Transportation Safety Board (NTSB) reported on nine transit accidents that, collectively, resulted in 15 fatalities, 297 injuries, and over $30 million in property damages. During that same period, transit agencies reported over 40,000 incidents, approximately 2,000 fatalities, and over 76,000 injuries to FTA's National Transit Database.\4\ --------------------------------------------------------------------------- \3\ See United States Department of Transportation, Bureau of Transportation Statistics, ``Table 2-1: Transportation Fatalities by Mode 1960-2013,'' available at https://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_02_01.html_mfd; and ``Table 1-40: U.S. Passenger Miles (Millions) 1960-2013,'' available at https://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_01_40.html. \4\ National Transit Database, Major-Only Time Series, https://www.ntdprogram.gov/ntdprogram/data.htm. --------------------------------------------------------------------------- The NTSB has investigated a number of these accidents and has issued reports identifying the probable causes and contributing factors, including deficiencies in the training and supervision of employees; \5\ deficiencies in the maintenance of equipment and infrastructure; \6\ and deficiencies in safety management and oversight, such as weaknesses in transit agencies' safety rules and procedures,\7\ lack of safety cultures within transit agencies,\8\ and lack of adequate oversight by State and Federal agencies.\9\ The deficiencies identified by NTSB will continue to plague the transit industry as infrastructure ages, skilled employees retire, and transit agencies continue to endure financial stresses. Through implementation of the Public Transportation Safety Program, including today's Public Transportation Agency Safety Plan proposed rulemaking, FTA's goal is to address these deficiencies and improve the safety of public transportation. --------------------------------------------------------------------------- \5\ For example, the National Transportation Safety Board (NTSB) issued Safety Recommendation R-15-010 for the Washington Metropolitan Area Transit Authority's (WMATA) Metrorail incident on January 12, 2015, and NTSB issued Safety Recommendations R-15-20 and R-15-021 for the Chicago Transit Authority's (CTA) incident on March 24, 2015. NTSB's reports for these recommendations are pending. \6\ NTSB issued Safety Recommendation R-15-008 for the WMATA Metrorail incident on January 12, 2015; NTSB's report for this incident is pending. NTSB also issued several Safety Recommendations in Report RAR-10/02. \7\ NTSB issued Safety Recommendations R-15-009 and R-15-011 for the WMATA Metrorail incident on January 12, 2015; NTSB's report for these recommendations is pending. NTSB also issued several Safety Recommendations in Reports RAB-15-02, RAR-12/04, and RAR-10/02. \8\ NTSB cited safety culture concerns in Reports SIR-14/03 and RAR-07/02. \9\ NTSB issued Safety Recommendation R-15-007 for the WMATA Metrorail incident on January 12, 2015, and Safety Recommendations R-15-018 and R-15-019 for the CTA incident on March 24, 2015. NTSB's reports for these recommendations are pending. NTSB also issued several safety recommendations in Reports RAR-12/04, RAR-11/01, and RAR-10/02. --------------------------------------------------------------------------- [[Page 6348]] In order to advance a comprehensive approach to safety decision- making, FTA is proposing to adopt an SMS approach to developing and implementing the Public Transportation Safety Program, and specifically the Public Transportation Agency Safety Plans. Following a recommendation from FTA's designated Federal Advisory Committee--the Transit Advisory Committee for Safety (TRACS) \10\--on May 13, 2013, the FTA Administrator issued a Dear Colleague Letter \11\ and answers to Frequently Asked Questions (FAQs) \12\ to the transit industry stating FTA's intention to adopt the SMS approach as the basis for its initiatives to improve the safety of public transportation. This NPRM seeks comment on proposed SMS processes and activities and their documentation in the Public Transportation Agency Safety Plans. This NPRM also seeks public comments on alternatives to requiring adoption of SMS, such as promoting adoption of SMS through guidance or technical assistance (while also promulgating regulations that satisfy the statutory requirements of 49 U.S.C. 5329(d)). --------------------------------------------------------------------------- \10\ Implementing Safety Management System Principles in Rail Transit Agencies, available at https://www.fta.dot.gov/documents/TRACS_Ltr_Rpt_SMS_fnl.pdf. \11\ The Dear Colleague Letter is available at https://www.fta.dot.gov/newsroom/12910_15391.html. \12\ The SMS FAQs are available at https://www.fta.dot.gov/tso_15177.html. --------------------------------------------------------------------------- Safety management is based on the fact that safety is not an absolute condition--there always will be hazards and risks in public transportation. However, an approach of primarily reacting to accidents and incidents by prescribing measures to prevent recurrence alone will not contribute to sustaining and improving public transportation safety. Modern SMS practices that systematically and proactively identify the factors that contribute to unsafe events, and prevent or minimize the likelihood of their occurrence, have proven effective in other transportation sectors. Such practices call for setting safety goals and objectives, defining clear levels of accountability and responsibility for safety, establishing proactive approaches to identifying hazards and managing safety risks in day[hyphen]to[hyphen]day activities, establishing safety risk[hyphen]based resource allocation, monitoring and evaluating performance towards goals, and continuous learning and improvement. SMS is a significant improvement over more ``reactive'' safety activities, which tend to focus on discovering and mitigating the cause of an accident only after that accident has occurred. SMS integrates safety into all aspects of a transit system's activities, from planning to design, to construction, to operations, and to maintenance. SMS builds on the public transportation industry's three decades of experience with system safety by bringing management processes, integrated data analysis, and organizational culture more squarely into the industry's overall risk management framework. SMS is a management approach that provides processes that ensure each public transportation agency, no matter its size or service environment, has the necessary organizational structures, accountabilities, policies, and procedures in place to direct and control resources to manage safety optimally. When fully applied, the SMS approach provides a set of decision-making tools that allow transit agencies to prioritize safety when making informed operating and capital investment decisions. SMS is comprised of four essential components: (1) Safety Management Policy, (2) Safety Risk Management, (3) Safety Assurance, and (4) Safety Promotion. Each of these components, or ``pillars,'' is consistent with 49 U.S.C. 5329(d). The table below illustrates the connection between each of the statutory requirements for safety plans and the pillars of SMS. Table 2--Crosswalk Between the Statutory Requirements for Safety Plans and the Pillars of SMS ---------------------------------------------------------------------------------------------------------------- Safety plan must Statutory provision include: SMS Pillar ---------------------------------------------------------------------------------------------------------------- 49 U.S.C. 5329(d)(1)(A)..................... ``a requirement that Safety Management Policy. the board of directors (or equivalent entity) of the recipient approve the agency safety plan and any updates to the agency safety plan''. 49 U.S.C. 5329(d)(1)(B)..................... ``methods for Safety Risk Management. identifying and evaluating safety risks throughout all elements of the public transportation system of the recipient''. 49 U.S.C. 5329(d)(1)(C)..................... ``strategies to Safety Risk Management. minimize exposure of the public, personnel, and property to hazards and unsafe conditions''. 49 U.S.C. 5329(d)(1)(D)..................... ``a process and Safety Assurance. timeline for conducting an annual review and update of the safety plan of the recipient''. 49 U.S.C. 5329(d)(1)(E)..................... ``performance targets Safety Management Policy. based on the safety performance criteria and state of good repair standards''. 49 U.S.C. 5329(d)(1)(F)..................... ``assignment of an Safety Management Policy. adequately trained safety officer who reports directly to the general manager, president, or equivalent officer of the recipient''. 49 U.S.C. 5329(d)(1)(G)..................... ``a comprehensive staff Safety Promotion. training program for the operations personnel directly responsible for safety of the recipient''. ---------------------------------------------------------------------------------------------------------------- Safety Management Policy is the foundation of the organization's SMS. The safety management policy statement clearly states the organization's safety objectives and sets forth the policies, procedures, and organizational structures necessary to accomplish the safety objectives. It clearly delineates management and employee responsibilities for safety throughout the organization. It also ensures that management is actively engaged in the oversight of the organization's safety performance by requiring regular review of the safety policy by a designated Accountable Executive (general manager, president, or other person with similar authority). Within the context of the Public Transportation Agency Safety Plan, an organization's safety objectives will be articulated through the setting of performance targets based on, at a minimum, the safety performance criteria established in the National Public Transportation Safety Plan, and state of good repair standards based on the definition of that term established under the National Transit Asset Management System Rule. See 49 U.S.C. 5329(d)(1)(E). Pursuant to the statutory requirements at 49 U.S.C. 5329(d)(1)(B) and (C), each agency's Public Transportation Agency Safety Plan must include ``methods for identifying and evaluating safety risks [[Page 6349]] throughout all elements of the public transportation system,'' and ``strategies to minimize the exposure of the public, personnel, and property to hazards and unsafe conditions.'' Each of these requirements is consistent with the second component of SMS--Safety Risk Management--which requires the development of processes and activities to help the organization better identify hazards associated with its operational systems. Once identified, a transit agency would evaluate the safety risk associated with the potential consequences of these hazards, and then institute mitigations, as necessary, to control the consequences or minimize the safety risk. Additionally, FTA proposes to require a transit agency to perform hazard identification activities on those assets that do not meet the state of good repair standards established under the National Transit Asset Management System. The statutory requirements at 49 U.S.C. 5329(d)(1)(B), (C), and (D) also encompass the requirements of the third component of SMS--Safety Assurance. Safety Assurance requires an organization to monitor the effectiveness of safety risk mitigations established under Safety Risk Management. Safety Assurance is also designed to ensure that the organization meets or exceeds its safety objectives through the collection, analysis, and assessment of data about the organization's performance. One of the keys elements of Safety Assurance is a regular review and update of a transit agency's SMS and overall safety plan to ensure their effectiveness. The fourth component of SMS--Safety Promotion--involves the training, awareness, and communication that support safety. The training aspect of SMS is consistent with the statutory requirement for a comprehensive staff training program for operations personnel and personnel directly responsible for safety. 49 U.S.C. 5329(d)(1)(G). Service providers within the public transportation industry can vary greatly based on size, complexity, and operating characteristics. Transit agencies need safety processes, activities, and tools that scale to size, complexity, and uniqueness of the transit system. SMS provides such an approach. SMS is flexible, and can be scaled to the mode, size, and complexity of any transit operator, in any environment--urban, suburban, or rural. The extent to which the transit agency's SMS processes, activities, and tools are used and documented will vary from agency to agency. For a small bus operation, SMS is going to be simple and straightforward. For a larger transit agency with hundreds or thousands of employees and multiple modes, SMS is going to be more complex. SMS scales itself to reflect the size and complexity of the operation, but the fundamental accountability remains the same. SMS establishes the accountabilities, processes and activities necessary to ensure that appropriate information rises to the highest levels of the organization to support decision-making related to safety risk. However, each transit agency will determine the level of detail necessary to identify and evaluate its own unique safety risks and target its resources to manage those safety risks. Other modes of transportation, such as the aviation and rail industries, have adopted SMS as the foundation and framework for their safety systems given the success of SMS in preventing and mitigation safety outcomes. For example, the Federal Aviation Administration (FAA) recently adopted SMS and promulgated a regulation which requires certain air carriers to develop safety plans based on the principles of SMS.\13\ In the rail industry, FRA is proposing to adopt SMS in its rulemaking which would require railroads to develop system safety program plans, largely based on the principles of SMS, under 49 CFR part 270. --------------------------------------------------------------------------- \13\ See FAA's Final Rule, ``Safety Management Systems for Domestic, Flag, and Supplemental Operations Certificate Holders,'' 14 CFR parts 5 and 119, 80 FR 1308, Jan. 8, 2015. --------------------------------------------------------------------------- There is also preliminary evidence of the success of SMS as an effective method of mitigating and preventing safety outcomes in other modes of transportation in other parts of the world. For example, Transport Canada has noted that, in the area of rail safety: [N]ot only have qualitative benefits been identified, but statistics reflect a correlation between the introduction of the safety management system approach in 2001 and improved safety statistics. Statistical analysis . . . indicates a downward trend in accident rates . . . over the past 10 years. Moreover, since 2007, train accidents have decreased by 23% and passenger train accidents have decreased by 19%. This decrease can be linked to increased levels of consultation and communication between the three largest railway companies and Transport Canada, enhanced focus on safety management systems, and a variety of new safety initiatives related to operations and infrastructure. It is therefore expected that updates to safety management systems would help further reduce the number of accidents, fatalities and injuries, and property damage.\14\ --------------------------------------------------------------------------- \14\ See https://gazette.gc.ca/rp-pr/p2/2015/2015-02-25/html/sor-dors26-eng.php. In short, FTA believes that SMS is the most effective way of preventing and mitigating safety events in the transit industry. Notwithstanding the above, FTA seeks comments from the public on alternative regulatory requirements, potentially in combination with non-mandatory guidance, that would satisfy the statutory requirements of 49 U.S.C. 5329(d) and that may more cost-effectively improve the safety of the nation's public transportation systems. FTA specifically invites the public to provide information to allow the comparison of the benefits and costs of FTA's proposed requirements to alternative approaches. D. The Role of the Accountable Executive With Public Transportation Agency Safety Plans and Transit Asset Management Plans Each transit agency has a process by which it budgets, allocates funds, and plans for the future. In most cases, this decision-making process is led by a President, General Manager, or Chief Executive Officer who formulates and proposes capital and operating budgets. For purposes of the Public Transportation Agency Safety Plan and Transit Asset Management Plan rules, FTA is proposing to require transit agencies to identify these individuals as the ``Accountable Executives'' for those agencies. The Accountable Executive would be responsible approving the transit agency's Public Transportation Agency Safety Plan, and any updates thereto. The Accountable Executive would be responsible for the implementation and maintenance of the SMS. This Accountable Executive also would be responsible for making decisions over the human and capital resources needed to develop and maintain the agency's Transit Asset Management Plan required by 49 U.S.C. 5326. FTA intends that the individual who is responsible for making decisions related to the condition of the agency's capital assets, particularly whether those assets are in a state of good repair, is also responsible for implementing the agency's SMS and determining whether those assets are presenting any safety risks. This individual must have the ability to make budgetary, operational, and capital program decisions to address these competing needs and issues. Ultimately, the decisions made by the Accountable Executive regarding the proposed capital and operating budgets typically are presented for approval to the transit agency's Board of Directors or equivalent entity. An Accountable Executive and members of the transit agency's Board of Directors must make [[Page 6350]] strategic decisions regarding operational and service demands, capital investments, and the safety resource needs of the system. This often can be challenging due to budget constraints and service demand pressures. It is important that safety receives appropriate attention by the Accountable Executive and Board of Directors as they make decisions regarding operating and capital budgets. Within an SMS environment, the Accountable Executive would rely on outputs of SMS processes and activities to ensure that a transit agency's strategic planning is informed and transparent with regard to the role of safety in decision-making. III. Advance Notice of Proposed Rulemaking and Response to Relevant Comments As discussed above, FTA issued an ANPRM on October 3, 2013. 78 FR 61251 (https://www.gpo.gov/fdsys/pkg/FR-2013-10-03/pdf/2013-23921.pdf). The comment period closed on January 2, 2014. The ANPRM sought comment on 123 questions related to the implementation of the public transportation safety program and transit asset management. In response to the ANPRM, FTA received comments from 167 entities, including States, transit agencies, trade associations, and individuals. FTA received and reviewed approximately 2,500 pages of comments. Throughout the ANPRM, FTA expressed its intention to adopt a comprehensive approach to safety that would be scalable and flexible. Of the 123 questions presented in the ANPRM, FTA is addressing 42 questions in this notice related to Public Transportation Agency Safety Plans. Specifically, FTA addresses the following questions in this notice: 8-10, 17-31, 33-44, 47, 107-110, 112, and 116-121. To reduce the burden on readers, where applicable and possible, FTA provides a summation and/or reference to the State Safety Oversight Program, or Public Transportation Safety Program NPRMs as a way to direct the reader to the appropriate discussion and limit redundancy. FTA took relevant comments into consideration when developing this proposed rule. Below, the ANPRM comments and responses are subdivided by subject and corresponding question numbers. A. Scope and Applicability of Public Transportation Agency Safety Plans B. Safety Management Systems C. Public Transportation Agency Safety Plan Development, Certification, and Oversight D. Role of the Board of Directors (or Equivalent Authority) and the Chief Safety Officer E. Coordination of Public Transportation Agency Safety Plan with Other MAP-21 Programs and Rules A. Scope and Applicability of Public Transportation Agency Safety Plans (Questions 22, 31, 33 and 43) In the Plan Requirements section of the ANPRM, FTA sought input on the costs and benefits of including rail, bus, and other public transportation modes under one Public Transportation Agency Safety Plan for those agencies that operate multiple modes of public transportation. The State's Role section of the ANPRM sought comment on the applicability of Public Transportation Agency Safety Plan requirements to recipients of Section 5311 Tribal Transit Formula and Tribal Transit Discretionary Program funds. The ANPRM also sought comment on how to define small public transportation providers under 49 U.S.C. 5307 (Section 5307) and whether or not the scope of Public Transportation Agency Safety Plan requirements should be less stringent for smaller public transit providers. Comments: Commenters were evenly split on whether multiple modes should be combined into one agency-wide safety plan or whether multi- modal agencies should develop separate safety plans for each of their modes. Many commenters felt strongly that a single plan should be adopted in order to maintain agency-wide consistency and uniformity in overall safety culture. Other commenters suggested that rail and bus modes require separate safety plans due to inherent differences in safety concerns and focus. Additional respondents requested that FTA allow flexibility on this matter, leaving it up to each individual agency as to whether to adopt separate safety plans by mode or to combine all modes into one agency-wide safety plan. In regards to 49 U.S.C. 5311 Tribal recipients, some commenters stated that FTA should decide how best to apply safety plan provisions to these recipients. Other commenters suggested that Section 5311 Tribal recipients should report directly to FTA, and others stated that Tribal recipients should be included in standard statewide safety plans. Additionally, a few commenters suggested that 49 U.S.C. 5329(d) does not apply to State subrecipients or Tribal Transit recipients. One commenter recommended that Public Transportation Agency Safety Plan requirements should apply equally to all recipients, including those receiving funds through the Tribal Transit Formula and Tribal Transit Discretionary Programs. In terms of whether or not requirements should be less stringent for smaller public transit providers, several commenters suggested that, while there should be consistency in the approach to safety, smaller transit providers should not be subjected to overly burdensome requirements and should be allowed to implement less stringent approaches to safety management. These and other commenters also suggested that, if possible, smaller transit providers should be able to pool resources with States or other transit providers for expenses associated with acquiring safety training, if possible. To this point, a few commenters recommended that FTA adopt CTAA's Certified Safety and Security Officer Certification Program as a way to minimize additional training cost for small transit providers. In general, many commenters recommended that the scope of FTA's requirement should be scalable and flexible enough to recognize that smaller transit operations may contain fewer safety risks than those of larger transit agencies. With respect to FTA's question as to how it should define small Section 5307 public transportation providers, several commenters recommended that the definition should be based on either the population of the urbanized area (UZA) that the transit agency serves or by the number of vehicles in operation during peak service. Specifically, commenters stated that either a population between 50,000 and 200,000, or a population of 200,000 or less, should be used as the threshold to define a small Section 5307 public transportation provider. Other commenters stated that 100 buses or fewer in peak service should be the threshold set for a small Section 5307 public transportation provider, as it is a measure familiar throughout the entire public transportation industry and less subject to variation than other similar measures. A few commenters recommended that the definition used for waivers in the National Transit Database (NTD)-- thirty or fewer vehicles across all modes and types of service--should be used as the measure to define a small Section 5307 public transportation provider. Other commenters suggested that FTA define these agencies by size of area served, revenue miles, or passenger counts. Finally, a few commenters suggested that the States should have no role in [[Page 6351]] overseeing the safety of small Section 5307 public transportation providers. Response: In today's NPRM, FTA proposes that a transit agency may include more than one mode of service in a single plan, or may have individual safety plans for each mode of service. FTA agrees that flexibility is important on this matter, and that each agency should have discretion in deciding which approach is appropriate for its particular operations. FTA does not intend to promulgate safety regulations that will apply to either commuter rail systems that are regulated by the FRA or to ferry systems that are regulated by the United States Coast Guard (USCG). FTA invites additional comments on how FTA could support the development of Public Transportation Agency Safety Plans for transit agencies of different sizes and modes. Although FTA is proposing to provide flexibility to transit agencies so that they can determine for themselves whether they will develop a single safety plan for all modes of transit, or whether they will develop individual safety plans for each mode, FTA is not proposing to allow transit agencies to utilize their FRA-required commuter railroad safety plans for other modes of transit regulated by FTA. FTA notes that on September 7, 2012, FRA issued an NPRM related to its System Safety Program. 77 FR 55406. In this NPRM, FRA proposes to require any railroad that operates intercity or commuter passenger train service and any railroad that provides commuter or other short- haul rail passenger train service to develop a System Safety Program Plan. FRA proposes to protect from discovery, evidence, and Federal and State court proceedings any information compiled or collected solely for the purpose of developing, implementing, or evaluating a System Safety Program Plan, including a railroad's analysis of its safety risks and its identification of safety risk mitigation measures. Given FRA's proposal and given the fact that FTA does not have similar statutory authority to protect data, an operator of a public transportation system which provides commuter rail service regulated by FRA would not be able to use its System Safety Program Plan for other modes of public transportation. The public transportation provider would be required to develop a separate plan or plans for its other modes of public transportation subject to FTA's safety regulation. In today's NPRM, FTA proposes, consistent with the statutory mandate, that requirements of Part 673 would apply to all operators of public transportation systems that receive Federal financial assistance under 49 U.S.C. Chapter 53. FTA proposes to define an operator of a public transportation system to mean a provider of public transportation as defined under 49 U.S.C. 5302(14). This definition generally includes regular, continuing shared ride surface transportation that is open to the public, and which does not provide service that is closed to the general public and only available for particular clientele, such as Section 5310-funded service that is not open to the general public and only available for a particular clientele. FTA invites comments from the public regarding the definition of the term, ``operator of a public transportation system.'' While Congress did not specify that Section 5310 providers could have their plans drafted or certified by a State, FTA notes that 49 U.S.C. 5329 applies to all operators of public transportation systems that receive Chapter 53 funds. The definition of public transportation in 49 U.S.C. 5302 includes services that ``are open to a segment of the general public defined by age, disability, or low income.'' The Section 5310 program historically has funded vehicles for non-profit agencies that serve these segments of the general public, either in open door service or closed door service available only to clients of a particular agency or agencies. Importantly, not every entity that receives Section 5310 funds is a small non-profit agency with one or two FTA-funded vehicles. Many Section 5310 providers operate substantial fixed route or demand response service, including ADA complementary paratransit service, and in many cases these entities also receive urbanized (Section 5307) or rural area (Section 5311) formula funds. FTA therefore is proposing that the type of service, rather than the source of FTA funds, be the deciding factor in determining whether a Section 5310 recipient must have a Public Transportation Agency Safety Plan. In the case when a Section 5310 provider operates service that is open door service (open to a segment of the general public), FTA proposes that the Section 5310 provider must have its Public Transportation Agency Safety Plan drafted and certified by a State, unless the Section 5310 provider opts to draft and certify its own plan. Most of these Section 5310 providers are smaller operators of public transportation systems, and through this requirement, FTA intends to alleviate the administrative and financial burdens placed on Section 5310 providers in complying with this part. In the case when a Section 5310 provider operates service that is closed to the general public and only available for a particular clientele, FTA proposes that neither the State nor the Section 5310 provider would be required to develop and certify a Public Transportation Agency Safety Plan. In other words, nonprofit and other community service organizations that receive Section 5310 funds and provide closed door service would not be required to draft and certify Public Transportation Agency Safety Plans. FTA seeks comments from the public on these proposals, particularly as to whether a Section 5310 provider operating a public transportation system should be required to develop and implement a Public Transportation Agency Safety Plan, whether or not the entity also receives Section 5307 or Section 5311 funds, and if so, whether that plan should be drafted and certified by a State. FTA also seeks comment as to whether a designated recipient under 49 U.S.C. 5310 should draft and certify Public Transportation Agency Safety Plans on behalf of Section 5310 providers in large urbanized areas instead of the State, or if the States should draft and certify those plans. FTA anticipates scalability and flexibility in agency plan development, and FTA will provide substantial technical assistance and guidance to all recipients and subrecipients. Proposed requirements in today's NPRM recognize the variance in size, complexity, and operating characteristics of the public transportation industry. Because 49 U.S.C. 5329(d) provides that States may draft and certify Public Transportation Agency Safety Plans for Section 5311 providers (most of which are smaller transit agencies) and small public transportation providers under Section 5307, and because SMS implementation is inherently scalable, FTA believes that today's proposal provides sufficient flexibility for States and small transit providers, such that they would not be expected to incur expenses for safety management equal to those of a large transit agency. While FTA proposes that 49 CFR part 673 would apply to all Chapter 53 operators of public transportation systems, the proposed requirements may be scaled to address variances in transit agency size, complexity, and operating environment. In today's NPRM, FTA proposes to define small public transportation providers under Section 5307 based on vehicles operating in revenue service. Any public transportation provider that does not opera
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