State Safety Oversight, 14229-14262 [2016-05489]

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)]
[Rules and Regulations]
[Pages 14229-14262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05489]



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Vol. 81

Wednesday,

No. 51

March 16, 2016

Part II





Department of Transportation





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 Federal Transit Administration





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49 CFR Part 674





State Safety Oversight; Final Rule

Federal Register / Vol. 81 , No. 51 / Wednesday, March 16, 2016 / 
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 674

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


State Safety Oversight

AGENCY: Federal Transit Administration (FTA), USDOT.

ACTION: Final rule.

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SUMMARY: The Federal Transit Administration is issuing a final rule for 
State safety oversight of rail fixed guideway public transportation 
systems not regulated by the Federal Railroad Administration (FRA). 
This final rule replaces the current State Safety Oversight (SSO) rule, 
which will be rescinded no later than three years following the 
effective date of this rule. State Safety Oversight Agencies (SSOAs) 
and rail transit agencies (RTAs) will continue to comply until they 
come into compliance with these new regulations.

DATES: The effective date of this rule is April 15, 2016.

FOR FURTHER INFORMATION CONTACT: For program matters, Brian Alberts, 
Program Analyst, FTA Office of Transit Safety and Oversight, telephone 
202-366-1783 or Brian.Alberts@dot.gov. For legal matters, Richard Wong, 
FTA Office of Chief Counsel, telephone 202-366-4011 or 
Richard.Wong@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
     Legal Authority
     Summary of Key Provisions
     Costs and Benefits
II. Rulemaking Background
III. Summary of Comments and Section-by-Section Analysis
IV. Rulemaking Analyses and Notices
     Executive Orders 13563 and 12866 and USDOT Regulatory 
Policies and Procedures
     Regulatory Flexibility Act
     Unfunded Mandates Reform Act of 1995
     Executive Order 13132 (Federalism Assessment)
     Executive Order 12372 (Intergovernmental Review)
     Paperwork Reduction Act
     National Environmental Policy Act
     Executive Order 12630 (Taking of Public Property)
     Executive Order 12898 (Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations)
     Executive Order 12988 (Civil Justice Reform)
     Executive Order 13045 (Protection of Children)
     Executive Order 13175 (Tribal Consultation)
     Executive Order 13211 (Energy Effects)
     Privacy Act
     Statutory/Legal Authority for this Rulemaking
     Regulation Identification Number

I. Executive Summary

    This rule replaces the existing regulations for state safety 
oversight of rail fixed guideway public transportation systems in 49 
CFR part 659 that have been in place for the past twenty years and 
significantly strengthens states' authorities to prevent and mitigate 
accidents and incidents on public transportation systems.
    In the Moving Ahead for Progress in the 21st Century Act (MAP-21) 
(Pub. L. 112-141, July 6, 2012), Congress directed FTA to establish a 
comprehensive public transportation safety program, one element of 
which is the State Safety Oversight (SSO) Program. (See 49 U.S.C. 
5329). The purpose of today's final rule is to carry out the several 
explicit statutory mandates to strengthen the States' oversight of the 
safety of their Rail Transit Agencies (RTAs), including that States' 
oversight agencies have the necessary enforcement authority, legal 
independence, and financial and human resources for overseeing the 
number, size, and complexity of the RTAs within their jurisdictions.
    On December 4, 2015, the President signed the Fixing America's 
Surface Transportation (``FAST'') Act (Pub. L. 114-94) into law, which 
did not modify the provisions included in MAP-21 that were the subject 
of the NPRM, but did augment FTA's safety authority by appending a new 
subparagraph (e)(8) ``Federal Safety Management'' to 49 U.S.C. 5329(e). 
However, because the FAST Act was enacted subsequent to publication of 
the SSO NPRM and the closure of the notice-and comment window, FTA is 
not including additional regulatory provisions about the new ``Federal 
Safety Management'' authority in today's rulemaking. To the extent FTA 
determines this new provision requires additional regulatory text, it 
will do so in a subsequent notice-and-comment rulemaking. Thus, for 
convenience, and accurate historical context, this rule will refer to 
MAP-21 throughout the preamble to signify the fundamental changes MAP-
21 made to States' authorities and responsibilities for overseeing the 
safety of their rail transit fixed guideway systems.
    In the legislative history of MAP-21, Congress identified several 
critical weaknesses in state oversight of rail transit system safety, 
including:
     Lack of adequate and consistent safety practices across 
the rail transit industry.
     Lack of regulatory, oversight, and enforcement authority 
for state agencies.
     Limited SSO program funding, staff, training, and other 
resources.
     Lack of SSO financial and legal independence from the rail 
transit agencies they oversee.
    Today's final rule is a critical step in implementing new 
requirements for enhanced safety in public transportation. On February 
5, 2016, FTA published for public review and comment the Public 
Transportation Agency Safety Plan NPRM (81 FR 6344) and a Notice of 
Availability of the proposed National Public Transportation Safety 
Plan, (81 FR 6372). In addition, FTA will be issuing a subsequent final 
rule addressing the Public Transportation Safety Certification Training 
Program.
 Legal Authority
    Section 20021 of MAP-21, now codified at 49 U.S.C. 5329, enacted 
several new provisions that require FTA to establish a comprehensive 
public transportation safety program, the elements of which include a 
National Public Transportation Safety Plan; a training and 
certification program for Federal, state, and local transportation 
agency employees with safety responsibilities; Public Transportation 
Agency Safety Plans; and a strengthened State Safety Oversight Program.
 Summary of Key Provisions
    The February 27, 2015, NPRM (80 FR 11001) proposed to make the 
following changes to strengthen the existing SSO program, which are 
being finalized today:
     States would assume greater responsibility for overseeing 
the safety of their rail fixed guideway systems.
     FTA would review and approve each State's SSO program 
standard, certifying whether States are meeting the statutory criteria 
and withholding funds from those States that are not.
     FTA would impose financial penalties on those States with 
non-existent or non-compliant safety oversight programs.
    In general, in this final rule, FTA has decided to maintain much of 
what was proposed in the NPRM. However, the agency has made several key 
changes in response to public comments. For example, FTA is revising 
the notification and reporting requirements by removing incidents from 
the types of events that require notification and an

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investigation, thus reducing the administrative burdens on both SSOAs 
and RTAs. In addition, FTA is withdrawing the proposal in the NPRM that 
required SSOAs to conduct an independent investigation of every 
accident and incident and instead will allow SSOAs to delegate that 
responsibility to an RTA, with the proviso that the SSOA conduct an 
independent review of the RTA's findings and conclusions. Finally, FTA 
is removing the text from Appendix A addressing principles of SMS 
(Safety Management Systems), and is replacing it with a table 
illustrating the reporting requirements for accidents, incidents, and 
occurrences, due to comments that the practice of SMS is more 
applicable to RTAs than SSOAs. SMS is more fully and appropriately 
addressed in the proposed National Public Transportation Safety 
(National Safety Plan) Plan and the Public Transportation Agency Safety 
Plan (Agency Safety Plan) rulemaking, which were both published in the 
Federal Register for public notice and comment on February 5, 2016. 
See, 81 FR 6372-3 and 81 FR 6344-71. The proposed National Safety Plan 
lays out FTA's strategic approach to safety performance, with proposed 
safety performance criteria for all modes of public transportation, and 
is based on the principles and methods of SMS. The Agency Safety Plan 
NPRM would require recipients to development and implement a 
comprehensive agency safety plan that incorporates key SMS components. 
FTA encourages readers to submit comments to the docket for both 
documents by April 5, 2016.
 Costs and Benefits
    In general, FTA has retained the approach to costs and benefits 
contained in the NPRM. Thus, the agency quantified, to the extent 
possible, the costs associated with this rule, and, instead of 
quantifying estimated benefits, instead conducted a breakeven analysis, 
to take into account significant uncertainties in determining the 
benefits.
    However, the agency has made several changes to both the rule and 
the analysis that have affected this analysis. First, in response to 
concerns raised by commenters, FTA has revised the notification and 
reporting obligations by removing incidents from the types of events 
that require notification and an investigation; this change will reduce 
the administrative burdens on both State Safety Oversight Agencies 
(SSOAs) and Rail Transit Agencies (RTAs). In addition, FTA conducted a 
second review of the estimated recurring and non-recurring regulatory 
costs under the proposed regulations to SSOAs and RTAs, using a wage 
rate more closely aligned to the skillsets required of them. Further, 
FTA has revised its labor costs to include a 56 percent allowance for 
employee fringe benefits based on Bureau of Labor Statistics data for 
2014. The labor cost for investigations has also been revised to 
reflect a higher cost for this specialty, along with the number of 
labor hours.
    The costs of the rule are also offset by the presence of Federal 
funding, whereas over the previous two decades, the costs of 
administering the SSO program was borne by the States as an unfunded 
Federal mandate. FTA notes that Congress has authorized approximately 
$22 million in grant funds each year to the States to offset the annual 
costs for the purpose of making this rule revenue-neutral between the 
Federal government and the States. Also, RTAs may use FTA grant funds 
to meet their obligations under this final rule.
    FTA conducted a breakeven analysis to determine what amount of the 
quantified benefits would need to accrue to outweigh the costs for both 
this rulemaking and the requirements for Public Transportation Agency 
Safety Plans for RTAs. Primarily, FTA looked at the safety events 
reported to FTA's National Transit Database and, in a more conservative 
analysis, only the five accidents investigated by the National 
Transportation Safety Board (NTSB) since 2004 which were related to 
inadequate safety oversight programs would need to be avoided in order 
to meet the cost of the rule. The first analysis, based on all rail 
incidents, showed that the breakeven level of incident reduction was 
1.1%. The second analysis looked only at NTSB-investigated incidents 
and found a breakeven level at a reduction of 0.69 incidents per year 
of that severity, even if no other incidents were affected.

II. Rulemaking Background

    Congress provided the framework for a comprehensive public 
transportation safety program in section 20021 of the Moving Ahead for 
Progress in the 21st Century Act (``MAP-21''), (Pub. L. 112-141, now 
codified at 49 U.S.C. 5329). The four key components of the program are 
the National Public Transportation Safety Plan, authorized by 
subsection 5329(b); the Public Transportation Safety Certification 
Training Program, authorized by subsection 5329(c); the Public 
Transportation Agency Safety Plans, authorized by subsection 5329(d); 
and the State Safety Oversight Program, authorized by subsection 
5329(e).
    On February 27, 2015, FTA published a Notice of Proposed Rulemaking 
(NPRM) for state safety oversight of rail fixed guideway public 
transportation systems (80 FR 11001). The NPRM provided an extensive 
summary of the history behind the SSO program, beginning with FTA's 
predecessor agency, the Urban Mass Transportation Administration being 
created as a grant-making and research-and-development program under 
the Urban Mass Transportation Act of 1964, and tracing the evolution of 
the agency's safety role through legislative amendments following 
various public transportation accidents, some of which resulted in 
recommendations from the NTSB.
    The current SSO program for rail fixed guideway transit safety 
dates back to section 3029 of the 1991 Intermodal Surface 
Transportation Efficiency Act (``ISTEA'') (Pub. L. 102-240). In 
enacting section 3029, Congress determined that the States, not FTA, 
should be the principal oversight authorities for rail transit within 
their jurisdictions, given that public transportation is an inherently 
local activity which, with few exceptions, does not cross state 
boundaries.
    On December 27, 1995, FTA promulgated its initial SSO rule (49 CFR 
part 659) (60 FR 67034), with an effective date of January 1, 1997, to 
provide States a full year to enact state statutes and regulations to 
carry out the new safety mandates--States were required to designate an 
SSOA, create a system safety program standard for rail transit agencies 
to follow, conduct safety audits every three years, and investigate 
accidents and hazardous conditions. Transit agencies, in turn, had to 
develop a system safety program plan, conduct internal safety audits, 
conduct accident investigations at the direction of the SSOA, and 
submit corrective action plans for the SSOA's approval. Ten years 
later, FTA amended the SSO rule (70 FR 22562, April 29, 2005), to 
clarify the roles and responsibilities of States and their SSOAs; set a 
new definition of ``hazard'' and requirements for hazard management 
plans; revise the requirements for SSOAs to conduct investigations; 
create a 21-point check list for an RTA's System Safety Program Plans 
(SSPPs); establish baselines for accident notification; and set forth a 
framework for corrective action plans. However, these amendments 
provided no additional enforcement power to the SSOAs, and very little 
enforcement power to FTA--only the option of withholding up to five 
percent of an

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RTA's urbanized area formula funding if FTA were to find a state not in 
compliance with the SSO regulations.
    In MAP-21, Congress directed FTA to establish a more rigorous and 
comprehensive SSO Program. See 49 U.S.C. 5329(e). To meet the statutory 
mandate, today's final rule now specifies that a state must submit its 
SSO program standard to FTA for approval and to obtain FTA 
certification of its program standard. In addition, a state must 
demonstrate its SSOA's financial and legal independence from the RTAs 
it oversees; its ability to effectively oversee the safety of the rail 
fixed guideway public transportation systems throughout the state 
through the adoption and enforcement of Federal and relevant state 
safety laws, investigatory authority, and an audit procedure; an 
appropriate staffing level for its SSOAs; and the proper training and 
certification of the SSOA's personnel.
    Today's final rule also requires public accountability. SSOAs must 
provide an annual status report to FTA, the Governor of the State, and 
the Board of Directors of the RTA that also will be available to the 
general public. In addition, FTA will publish and submit an annual 
evaluation of all SSO programs to Congress.

III. Summary of Comments and Section-by-Section Responses

    Fifty-two individuals and organizations submitted comments to the 
docket for this rulemaking, including transit agencies, state 
governments, industry trade associations, and concerned individuals.

Section 674.1 Purpose

    This section explained that the purpose of these regulations is to 
carry out the mandate of 49 U.S.C. 5329(e) for States to perform 
oversight of rail fixed guideway public transportation systems within 
their jurisdictions.
    Comments Received: Numerous commenters expressed concerns that FTA 
is pursuing a rulemaking for State Safety Oversight without having 
issued the other rulemakings required under 49 U.S.C. 5329, such as the 
National Public Transportation Safety Plan and Public Transportation 
Agency Safety Plans. These commenters stated it would be difficult for 
them to provide comprehensive comments on the SSO NPRM without full 
knowledge of the regulatory structure that FTA will propose to 
implement all the requirements under 49 U.S.C. 5329.
    Agency Response: The purpose of today's rulemaking is to implement 
the specific SSO requirements at 49 U.S.C. 5329(e). States can enact 
enabling legislation to bring their SSOAs into conformity with these 
requirements without the National Public Transportation Safety Plan in 
place, or a rulemaking for Public Transportation Agency Safety Plans. 
Readers should note in particular that 49 U.S.C. 5329(d)(2) provides an 
RTA's System Safety Program Plan (SSPP) developed pursuant to 49 CFR 
part 659 shall remain in effect until FTA publishes a final rule for 
Public Transportation Agency Safety Plans.
    SSOAs will continue to oversee RTAs' SSPPs until the RTAs are 
required to adopt Public Transportation Agency Safety Plans in 
compliance with the future rulemaking under 49 U.S.C. 5329(d). In the 
meantime, states should be setting up the necessary framework to enable 
their SSOAs to perform the oversight functions enumerated at 49 U.S.C. 
5329(e).
    FTA is including this section in the final rule without change.

Section 674.3 Applicability

    This section explained that these regulations apply to States with 
rail fixed guideway public transportation systems, the SSOAs that 
oversee the safety of those systems, and entities that own or operate 
rail fixed guideway public transportation systems with Federal 
financial assistance from FTA.
    Comments Received: FTA did not receive any comments on this 
section.
    Agency Response: FTA is including this section in the final rule 
without change.

Section 674.5 Policy

    This section identified three separate, explicit policies that 
underlie these regulations: First, FTA proposed using the principles 
and methods of Safety Management Systems (SMS) as the basis for these 
regulations, and has similarly proposed SMS in other regulations and 
policies FTA has issued under the authority of 49 U.S.C. 5329. Second, 
the primary responsibility for overseeing the safety of RTAs lies with 
the States--and a State's SSOA must have sufficient authority and 
resources to oversee the number, size, and complexity of rail fixed 
guideway public transportation systems that operate within that State. 
Third, FTA is obliged to make Federal funds available to eligible 
States to help them develop and carry out their SSO programs--and 
certify whether those programs are adequate to promote the purposes of 
the public transportation safety programs under 49 U.S.C. 5329.
    Comments Received: Nine commenters responded to this section, with 
five providing varying views on FTA's SMS approach. Some did not see 
how the 21 elements currently required in an RTA's SSPP could be 
integrated into the four components of SMS (i.e., safety policy, safety 
risk management, safety assurance, and safety promotion), while others 
asserted there is no difference between a fully implemented safety plan 
and SMS. Some expressed concerns of a significant delay in safety 
implementation if RTAs must start over with SMS as their means for 
safety management.
    Three commenters requested that FTA provide a clarification of the 
terms ``sufficient authority,'' ``sufficient resources,'' and 
``qualified personnel'' as used in this section. Two commenters asked 
FTA to publish criteria for determining whether a State's program is 
compliant with the Federal certification criteria and requirements. 
Commenters also asked FTA to identify under what circumstances FTA 
would withhold funds. Other commenters asked FTA to conduct outreach on 
the SSOA certification criteria and requirements before establishing 
the formal requirements and criteria for certification. Finally, one 
commenter asked whether the NPRM's omission of the System Security Plan 
currently required by 49 CFR 659.21 was intentional.
    Agency Response: In this rule and in other actions, FTA has 
proposed adopting the principles and methods of SMS as the basis for 
enhancing the safety of public transportation. A number of transit 
agencies are using SMS principles in their safety plans, and other 
transit agencies have started the transition to SMS-based safety plans. 
Thus, it is important that SSOAs have an understanding of an SMS-based 
approach to safety. However, FTA has determined it is not necessary to 
include the policy statement related to SMS in the SSO rule. FTA is 
developing guidance and training to assist SSOAs in building their SMS 
competencies so that they would be able both to effectively review and 
approve an SMS-based Agency Safety Plan and oversee their RTA's 
implementation of SMS.
    FTA believes that the more prescriptive 21-point checklist imposed 
on RTAs through System Safety Program Plans (SSPPs) is no longer needed 
because SMS will allow agencies to identify and address the risks on 
that current checklist that are applicable to that agency. One of the 
many benefits of SMS is that it is flexible; it does not impose a one-
size-fits-all methodology. Rather, SMS can be tailored to the mode, 
size, and complexity of any transit agency in any

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operating environment. Simply put, SMS requires a transit agency to 
identify its own safety risks, and to target its human and financial 
resources to manage the potential consequences of those risks.
    FTA does not agree with the handful of commenters who expressed 
concern regarding the transition from the existing 21-point SSPP to 
SMS. As one commenter noted, the 21 points of the SSPP can readily be 
addressed within the four components of SMS--Safety Management Policy, 
Safety Risk Management, Safety Assurance, and Safety Promotion.
    As stated above, some RTAs are using SMS principles as the basis 
for their safety programs, and others are making the transition; 
however, FTA recognizes that the transition to SMS will not be 
immediate. Thus, FTA will provide both SSOAs and the RTAs they oversee 
a reasonable time frame in which to implement the new SMS approach. As 
an RTA develops its flexible, site-specific, and proactive Agency 
Safety Plan, FTA expects it to do so in cooperation with the SSOA, 
which will aid in familiarizing the SSOA with the RTA's Agency Safety 
Plan and help the SSOA oversee its implementation.
    With regard to the commenters who sought a clarification or 
definition of the terms ``sufficient authority,'' ``sufficient 
resources,'' and ``qualified personnel,'' and what would trigger the 
withholding of funds, FTA believes that these will be determined on a 
case-by-case and state-by-state basis. To reiterate, the statute (49 
U.S.C. 5329(e)(4)(A)) sets forth the baseline requirements--that an 
SSOA has the authority to review, approve, oversee, and enforce the 
implementation of an RTA's safety plan; the authority to conduct 
investigations; and the resources necessary to do so. With regard to 
the qualifications of personnel, specifically, FTA's Notice of Proposed 
Rulemaking for the Safety Certification Training Program, published on 
December 3, 2015, (80 FR 75639), addresses these concerns, as will the 
Safety Certification Training Program final rule, which will be 
published subsequent to this rule for State Safety Oversight.
    FTA has made significant efforts to assist the States through 
webinars, conference calls, workshops, and the availability of 
technical assistance regarding the criteria and requirements for SSOA 
certification. FTA has worked closely with the States as they developed 
certification work plans in support of their grant applications for SSO 
funds. FTA agrees with the commenters who asked that any updates to the 
certification criteria be made only following an opportunity to provide 
comment. Indeed, any subsequent amendments to today's final rule at 
part 674 will go through the normal regulatory process, which includes 
notice-and-comment and publication in the Federal Register.
    With regard to the omission of the System Security Plan from 
today's rulemaking, the Transportation Security Administration (TSA), 
an agency of the United States Department of Homeland Security (DHS), 
has the prerogative and responsibility for all rulemakings on security 
in public transportation. Specifically, under the Implementing the 
Recommendations of the 9/11 Commission Act of 2007 (Pub. L. 110-53), 
and the September 2004 Memorandum of Agreement between DOT and DHS and 
the September 2005 modal annex between FTA and TSA, DHS is tasked with 
the responsibility for carrying out a national strategy for public 
transportation security to minimize security threats and to maximize 
the ability of public transportation agencies to mitigate damage from 
terrorist attacks and other major incidents. While this does not 
preclude RTAs from implementing measures securing their assets, it is 
no longer the responsibility of the SSOAs to oversee those measures. 
FTA recognizes, of course, that some of the steps an RTA takes to 
ensure the personal safety and security of its riders and employees 
will overlap with steps it takes to secure its system from a terrorist 
attack; for example, the steps an agency takes are part of a threat and 
vulnerability assessment. An RTA's expenses for both safety and 
security will continue to be eligible for Federal reimbursement under 
49 U.S.C. Chapter 53.

Section 674.7 Definitions

    The NPRM proposed a number of definitions for terms used repeatedly 
throughout the SSO rule and the other safety programs authorized by 49 
U.S.C. 5329.
    Comments Received: Forty entities submitted comments on several 
proposed definitions. For the convenience of the reader, FTA is 
organizing the comments to specific definitions and its responses in 
alphabetical order.
    ``Accident.'' The previous SSO rule at 49 CFR part 659 did not 
define the term ``accident,'' although requirements for RTAs to notify 
SSOAs of accidents were identified at 49 CFR 659.33 (``Accident 
notification.''). In the NPRM, FTA proposed a definition of 
``accident'' that incorporated many of the events specified in 49 CFR 
659.33, but FTA proposed replacing the ``two or more individuals 
transported away from the scene for medical treatment'' notification 
threshold with any accident causing a ``serious injury,'' which focused 
on the level of injury incurred, rather on the number of individuals 
transported away from the scene for medical treatment. As FTA stated in 
the NPRM, the purpose of this change was to provide better alignment 
with the nomenclature used by other transportation modes, including the 
FAA and the NTSB, and to provide clarity during data analysis to 
identify safety trends.
    Many commenters did not agree with the proposed change. Several 
requested that FTA revert back to the current threshold in 49 CFR 
659.33, which they felt is a sufficiently clear, objective threshold 
for RTAs to determine whether an incident must be reported to the SSOA. 
Other commenters stated that it would be difficult, if not impossible, 
to determine if an event met the definition of ``serious injury'' due 
to medical privacy laws and the inability to obtain such information 
from hospitals. Some commenters stated that often the extent of one's 
injuries may not be immediately apparent to RTAs and discovery would 
likely exceed the 2-hour reporting threshold. One commenter suggested 
removing ``serious injury'' from the definition and incorporating the 
terms ``incapacitating injury'' and ``non-incapacitating injury.'' 
Also, several commenters suggested that FTA limit the NPRM's proposed 
notification threshold of ``property or equipment damage equal to or 
greater than $25,000'' to damage to rail transit property, noting that 
the proposed threshold could include both rail transit and non-rail 
transit property.
    Some commenters expressed concerns regarding the removal of the 
term ``collision'' from the definition of ``accident,'' noting that 
under 49 CFR 659.33, collisions at a grade crossing and collisions 
between two rail transit vehicles or between one rail transit vehicle 
and a rail transit non-revenue vehicle require notification to the 
SSOA. Two commenters suggested that the definition of ``accident'' 
retain the requirement for notifications of grade crossing collisions, 
regardless of the cost of property or equipment damage.
    One commenter suggested that the term ``fatality'' in the 
definition of ``accident'' include the language in 49 CFR 659.33 that 
describes a fatality as one that occurs ``at the scene'' or ``within 
thirty (30) days of a rail transit-related incident.'' Another 
commenter asked FTA to clarify whether both mainline and non-mainline 
derailments

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were now considered ``accidents,'' noting that 49 CFR 659.33 required 
notification only of mainline derailments. Finally, one commenter 
suggested that the definition of ``accident'' be consistent throughout 
the U.S. Department of Transportation, including both FTA and FRA.
    Agency Response: FTA does not agree with the commenters who 
suggested that the definition of ``accident'' require injuries to two 
or more people. FTA believes that a serious injury to a single person 
is of sufficient concern to warrant designation as an ``accident.'' 
However, ambulance transportation away from the accident may not 
necessarily be an accurate indicator of the actual gravity of the 
event, given the tendency of ambulance operators to transport 
individuals with minor injuries. Furthermore, by limiting the 
notification requirement to ``serious injuries,'' today's rule will 
eliminate many of the ``non-serious'' injuries that were reported under 
49 CFR part 659 simply because two or more passengers accepted an offer 
of medical transportation away from an accident scene, regardless of 
any discernible injury to the passenger. Also, today's final rule will 
retain the term ``serious injury'' as proposed in the NPRM, bringing 
FTA's notification standard into conformity with FAA's and the NTSB's 
thresholds. While FTA acknowledges that it may be difficult to 
ascertain the precise type of injury due to medical privacy laws and 
the difficulty in obtaining medical records from hospitals and 
treatment centers, the nature of an injury is not so important as the 
need to notify an SSOA of an accident in a timely manner. If an injury 
initially thought to be ``minor'' turns out to be ``serious,'' or 
results in a fatality, the RTA should notify the SSOA within two hours 
of its discovery so that the SSOA may conduct an appropriate follow-up 
investigation, which may involve the participation of the RTA. In this 
regard, FTA does not agree with the commenter who suggested removing 
``serious injury'' from the definition and incorporating the terms 
``incapacitating injury'' and ``non-incapacitating injury,'' since 
those terms have not been commonly used in the SSO program and the use 
of those terms would not be consistent with the practice of other USDOT 
or Federal transportation safety agencies.
    With regard to the elimination of $25,000 threshold for property or 
equipment damage and the inclusion of the term ``collision'' in the 
definition of ``accident,'' FTA is removing the $25,000 threshold 
because most collisions involving rail transit vehicles exceed $25,000 
in property or equipment damage, and its removal eliminates any need to 
separate rail transit property from non-rail transit property in making 
an assessment of damages. FTA is also amending the definition of 
``accident'' to include a collision involving a rail transit vehicle 
regardless of whether that collision occurs at a grade crossing, 
because any collision or derailment, at any location, is an 
``accident'' for purposes of notifying the SSOA, with the SSOA having 
the discretion to determine the scope of the subsequent investigation. 
Readers should please see the table clarifying the notification and 
reporting procedures in a new Appendix A to today's rule. Consistent 
with the requirement under 49 CFR part 659 to report fatalities 
occurring within 30 days of an accident, FTA is retaining this 
timeframe.
    ``Accountable Executive.'' The NPRM introduced the concept of an 
``Accountable Executive''--the leader at the top of an organization who 
is ultimately responsible for safety, and offered a definition of the 
term that is consistent with the historical practice of SMS in other 
forms of transportation and other industries.
    Comments Received: One commenter expressed concern about how the 
definition of ``Accountable Executive'' would be applied to an SSOA, 
since an SSOA does not manage an RTA or have control over the capital 
and human resources of an RTA. The commenter noted that if this title 
is to apply to SSOA officials, as used in the proposed section 674.27, 
titled ``State safety program standards,'' the definition needs further 
explanation.
    Agency Response: Under the definition in the proposed section 
674.7, the Accountable Executive is identified as the leader of a 
public transit agency who is ultimately responsible for carrying out 
the various safety functions of the agency, such as the Transit Asset 
Management Plan, and the agency's Public Transportation Agency Safety 
Plan. Under the proposed section 674.27(a)(3), a State's SSO program 
standard would identify an individual who serves as the ``functional 
equivalent'' of an Accountable Executive, but the proposed rule did 
not, and the final rule is not, requiring the SSOA to designate an 
individual with that formal title. Because of the nature of their role, 
SSOAs would not need to designate an Accountable Executive. Rather, 
SSOAs would need to be fully conversant with the requirements of the 
Agency Safety Plan and clearly demonstrate their capability to oversee 
and understand an RTA's implementation of those requirements in the 
RTA's safety plan; as well as have the necessary authority to direct 
oversight functions, whether that authority rests with in an individual 
or a board. FTA has revised the final rule at section 674.27(a)(3) 
accordingly, but has not made any change to the definition of an 
``Accountable Executive.''
    ``Event.'' The NPRM defined an ``event'' as an ``accident, 
incident, or occurrence,'' for the purpose of including virtually any 
type of safety concern.
    Comments Received: Several commenters disagreed with FTA's broad 
definition of ``event,'' asserting that the term is unnecessary, 
redundant, and confusing. One commenter expressed concern that the 
proposed definition could reasonably be interpreted to encompass almost 
everything that occurs in a rail transit system, suggesting instead 
that the definition be revised to exclude minor instances and 
``occurrences'' that do not affect transit operations. Another 
commenter suggested FTA abandon this complex redefinition process, 
which is not consistent with terminology used in the transit industry 
or by the U.S. Department of Homeland Security (DHS). This commenter 
suggested that accidents and incidents be defined as unplanned 
happenings and ``event'' be defined as a planned activity, consistent 
with DHS's usage.
    Agency Response: The final rule keeps the proposed definition of 
``event.'' The actions required of an RTA or an SSOA under each of the 
three types of events, however--two-hour notification, thirty-day 
reporting, and self-monitoring--will continue to differ as described in 
the definitions of ``accident,'' ``incident,'' and ``occurrence'' as 
described in Appendix A to the final rule.
    While FTA is aware of the DHS terminology that differentiates 
``planned'' from ``unplanned'' activities, the definitions in today's 
final rule will be used consistently not just within 49 CFR part 674, 
but across FTA's National Public Transportation Safety Plan and its 
other safety rulemakings. In addition, FTA has adjusted the National 
Transit Database's (NTD) safety reporting module to reflect these 
definitions of ``accident,'' ``incident,'' ``occurrence,'' and 
``event.'' See Docket FTA-2014-0009 (January 2015).
    ``Hazard.'' Given the importance of hazard identification, 
analysis, tracking and control in ensuring the safe operation of rail 
transit, the NPRM proposed a definition of ``hazard'' as ``any real or 
potential condition that can

[[Page 14235]]

cause injury, illness, or death; damage to or loss of the facilities, 
equipment, or property of a rail fixed guideway public transportation 
system; or damage to the environment.'' The proposed definition is 
substantially similar to the definition of hazard in 49 CFR 659.5.
    Comments Received: Several commenters felt that the proposed 
definition of ``hazard'' was too broad, and that too many items would 
need to be reported regardless of risk and therefore the rule could be 
overly burdensome. These commenters thought that it would be 
impractical to require the reporting of all hazards and incidents to an 
SSOA, as well as the burden it would place upon the RTA.
    Agency Response: FTA is mindful of the reporting burdens for RTAs, 
thus, the final rule does not require that hazards be reported from the 
RTA to the SSOA or from the SSOA to FTA, as hazards are unrelated to 
the focus of today's rule, which requires certain events to be reported 
and documented. Although a hazard can cause an accident, it is not a 
reportable event in itself. However, hazard identification and analysis 
are absolutely critical to risk identification and mitigation; they are 
the first two steps in the process that help an RTA identify and 
address safety concerns before those concerns escalate into an accident 
or incident. FTA fully expects an RTA to implement its internal safety 
risk management process, including hazard identification and risk 
management, which are similar to the hazard management programs 
currently required under 49 CFR 659.19(f), which already requires 
hazard identification, hazard tracking, and hazard control and 
elimination.
    ``Incident.'' Section 674.5 of the NPRM defined an ``incident'' as 
an event that exceeds the definition of ``occurrence,'' but does not 
rise to the level of an ``accident,'' and provided as examples, near 
misses, close calls, railyard derailments, non-serious injuries, and 
violations of safety standards.
    Comments Received: A number of commenters expressed concern over 
the broadness of the term ``incident'' and the associated notification 
reporting burdens. These commenters felt that requiring all incidents 
to be reported and investigated would create excessive paperwork 
burdens that would divert scarce SSOA resources and contribute little 
towards safety.
    Notably, one large RTA in the Northeast stated that in 2014, it 
experienced 1,264 rail incidents, 400 of which were reported to its 
SSOA. This RTA spent an average of 40 hours per accident/incident 
investigation, ranging from minor incidents taking less than 8 hours to 
investigate, to major events that required weeks. Monitoring corrective 
action plans took an additional number of hours which the RTA did not 
quantify, but noted that some monitoring activities stretched into 
years. The RTA noted that its SSOA has access to their database which 
allows the SSOA to review all 1,264 incidents, and reserves the right 
to conduct an independent investigation of any incident.
    An SSOA from a Western state stated that it currently spends a 
minimum of 8 hours investigating every incident or accident that has 
been reported to it pursuant to 49 CFR 659.35. Similarly, an RTA from 
the Midwest stated that under the current rule, there were six 
reportable incidents in 2014, but applying the standard proposed in the 
NPRM would elevate this number to over three hundred. Another RTA from 
the West Coast claimed that requiring notification of every near-miss 
could add hundreds of hours of reporting time to each RTA as well as 
increasing the burdens of the SSOAs which must investigate each report. 
Likewise, another large transit agency in the Northeast stated that 
expanding its obligation to report incidents to its SSOA would increase 
its reporting burden by more than 17 times its current burden.
    In the NPRM, FTA asked whether the Final Rule should include a 
definition of ``near miss'' and ``close call'' for the purpose of 
incident notification and reporting. In response, several commenters 
stated that near misses and close calls should not be treated as 
``incidents'' because neither results in an injury or property damage. 
One commenter suggested there be a separate category for near misses 
and close calls. Another commenter noted, however, that the lack of a 
common definition would create inconsistencies by allowing RTAs and 
SSOAs to create their own definitions. One commenter felt that RTAs and 
SSOAs should have the discretion to define their own locally-developed 
thresholds. Others recommended the removal of the terms ``near miss'' 
and ``close call'' altogether, stating there would be far greater 
safety benefits from implementing a voluntary, non-punitive close call 
reporting system as recommended by the 2012 TRACS (Transit Advisory 
Committee for Safety) report, rather than increasing the paperwork 
burdens for both rail and oversight agencies.
    Additionally, several commenters questioned the $25,000 damage 
threshold separating an accident from an incident, claiming that 
applying the lower threshold would create an undue burden on RTAs and 
their SSOAs, overwhelming agencies with minor investigative tasks and 
paperwork. One RTA stated that it experiences about 10 events a month 
where property damage does not exceed $25,000, but may result in a 
service delay, such as a missing third-rail cover board, objects struck 
by a train, or vandalism and theft. The RTA asked that SSOAs and RTAs 
be allowed to determine for themselves which incidents should be 
reported and investigated. Finally, one commenter asked that SSOAs and 
RTAs be given discretion to establish additional reporting thresholds 
for incidents beyond the definition contained in this rule.
    Agency Response: FTA acknowledges the concerns of commenters who 
stressed the administrative burdens imposed by the notification and 
investigation of all incidents; thus, FTA has revised the definition of 
``incident'' as well as the requirements of sections 674.33 and 674.35 
in the final rule to alleviate some of those burdens. Nevertheless, a 
definition of incident is essential to an SSOA's oversight of the 
safety of RTAs. Specifically, FTA agrees with those commenters who 
suggested removing near misses, close calls, and violations of safety 
rules and policies from the ``incident'' category because FTA 
recognizes that these events do not typically result in personal 
injuries or property damage that would need to be reported to an SSOA. 
Instead, the final rule is placing these types of events into the 
definition of ``occurrence'' because they may be indicative of 
underlying safety risks that need to be collected, tracked, and 
analyzed by the RTA.
    The final rule keeps the NPRM's categorization of non-serious 
injuries as ``incidents.'' Also, the final rule keeps the current 
threshold under 49 CFR 659.33 whereby an RTA must notify its SSOA of 
injuries that result in medical transportation away from the scene. 
However, rather than retaining the ``two or more individuals'' 
threshold under 49 CFR 659.33, the triggering event for notification is 
now one or more individuals, because even non-serious injuries suffered 
by a passenger or employee are safety events that need to be reported 
by the RTA to FTA. FTA does not believe that this change will translate 
to a significant increase in paperwork burdens. Although incidents must 
be reported, they will not necessarily require investigations by the 
SSOA, as had been proposed in section 674.35 of the NPRM.
    Also, the final rule removes the $25,000 property damage threshold 
separating incidents from accidents. The

[[Page 14236]]

$25,000 figure dates back to the 2005 amendments to 49 CFR part 659 but 
had limited usefulness for purposes of safety, since even minor 
collisions routinely exceed that threshold. Instead, in the final rule, 
the determining factor is a simple operational determination of whether 
the damage to facilities, equipment, rolling stock, or infrastructure 
has disrupted the operations of the RTA. Removal of the arbitrary 
$25,000 threshold will relieve RTA personnel of the need to perform on-
the-spot estimates of property damage to determine whether to notify 
the SSOA of the incident.
    With regard to a commenter's question whether an SSOA may establish 
incident reporting thresholds more strict than those in today's rule, 
FTA stresses today's rule sets minimum reporting requirements for the 
SSOA under 49 U.S.C. 5329. If an SSOA wants to establish additional 
notification requirements, the SSOA may do so, consistent with its 
authority under state law.
    ``Individual.'' The NPRM included a definition of ``individual'' 
stemming from the definition in the previous rule at 49 CFR 659.5. 
However, under today's final rule, the term ``individual'' is replaced 
by the term ``person,'' which is used in the definition of 
``accident.''
    ``Investigation.'' The NPRM proposed a definition of 
``investigation'' as ``the process of determining the causal and 
contributing factors of an accident, incident, or hazard, for the 
purpose of preventing recurrence and mitigating risk.'' The proposed 
definition was substantially similar to 49 CFR 659.5. The dozens of 
comments received regarding this definition concerned the potential 
paperwork burden triggered by the obligation to investigate accidents 
and incidents as proposed in the NPRM, rather than on the substance of 
the definition itself. Therefore, this definition remains unchanged.
    ``National Public Transportation Safety Plan.'' FTA received no 
comments on this definition, thus the final rule keeps the definition 
as proposed.
    ``NTSB.'' One commenter requested that this acronym be spelled out 
in the Definitions section, similar to FTA and FRA, thus the final rule 
does so.
    Occurrence. The NPRM defined ``occurrence'' as ``an Event with no 
injuries, where damage occurs to property or equipment but does not 
affect transit operations.''
    Comments Received: Several commenters suggested that this 
definition be omitted from the SSO rule because occurrences do not 
raise the same level of concerns as reportable accidents and incidents, 
and maintaining records of occurrences is a paperwork burden that 
serves no productive safety purpose. Some commenters said the 
definition was ambiguous and confusing as to whether occurrences must 
be reported to an SSOA and investigated by an SSOA. Many SSOAs who 
commented on the NPRM cited the administrative burden of tracking 
thousands of occurrences every year and requested less-burdensome 
alternatives.
    Agency Response: FTA does not agree with those commenters who 
suggested that there be no definition of ``occurrence.'' FTA also 
disagrees with the commenter who suggested that ``occurrence'' need not 
be defined if it need not be reported. FTA believes it is critical to 
define and identify what type of events would constitute an occurrence, 
and that tracking occurrences is an essential element of the RTA's 
safety risk management activities. Specifically, occurrences may be 
indicative of underlying safety risks that could lead to a reportable 
``accident'' or ``incident,'' particularly those that occur on a 
frequent or repeated basis. FTA encourages RTAs and SSOAs to collect, 
track, and analyze data on occurrences to develop leading indicators, 
to prevent the likelihood of future events, and to inform the 
development of mitigations that may be applied across the public 
transportation industry. Consistent with the discussion of 
``incidents,'' above, FTA is moving close calls, near misses, and 
violations of a safety standard to the category of ``occurrence'' since 
they do not give rise to a fatality, injury, or property damage 
disrupting the operations of the RTA, but are serious enough to warrant 
heightened attention by both the RTA and its SSOA.
    Finally, several commenters had differing views on the definition 
of ``occurrences'' with regard to property damage, personal injuries, 
impact on rail transit operations, and the types of vehicles involved. 
FTA believes the table in Appendix A will help to delineate the 
differences between ``accidents,'' ``incidents,'' and ``occurrences'' 
and will contribute towards a common definition of each event.
    ``Passenger.'' The NPRM defined a ``passenger'' as ``a person who 
is on board, boarding, or alighting from a vehicle on a rail fixed 
guideway public transportation system for the purpose of travel,'' 
which is the longstanding definition of ``passenger'' under 49 CFR 
659.5.
    Comments Received: FTA received several comments on this 
definition. Several commenters asked that the definition of 
``passenger'' be expanded to include a person waiting to board a train 
in a station or on a platform. Another asked that the term ``patron'' 
be added to the SSOA rule, which, under the current SSO annual 
reporting requirements, is defined as ``an individual waiting for or 
leaving rail transit at stations, in mezzanines, on stairs, escalators, 
or elevators, in parking lots, and other transit-controlled property.''
    Agency Response: FTA is deleting the definition of ``passenger'' 
from the SSO rule because it is no longer relevant to the notification 
and reporting requirements of this rule. Instead, FTA is adding a new 
definition for ``person,'' which is a more comprehensive term that 
includes passengers as well as patrons and RTA employees. FTA believes 
the notification and reporting obligations in section 674.33 of the 
final rule are broad enough to include anyone involved in an accident 
or incident occurring on the property of an RTA, whether that person is 
a passenger, patron, pedestrian, or employee. This approach is 
consistent with the current reporting program under 49 CFR part 659 and 
the NTD reporting manual.
    ``Public Transportation Safety Certification Training Program.'' 
Section 5329(e) of Title 49 U.S.C. requires the proper training and 
certification of state safety oversight personnel, and 49 U.S.C. 
5329(c) authorizes a training program for SSO and RTA personnel 
responsible for safety oversight. The NPRM included a definition of 
``Public Transportation Safety Certification Program'' to reference 
these new requirements.
    Comments Received: One commenter recommended adding ``contractors'' 
to ``employees of public transportation agencies directly responsible 
for safety oversight'' since many RTAs engage contractors or 
consultants to aid in the responsibility of safety oversight. Another 
commenter noted that currently, there are no minimal training 
requirements of Chief Executive Officers or other top transit agency 
executives other than the Chief Safety Officers.
    Agency Response: The applicability of the training and 
certification requirements to SSOA personnel and their support 
contractors has been addressed in FTA's Safety Certification Training 
Program Interim Provisions (Feb. 27, 2015; 80 FR 10619) and NPRM (Dec. 
5, 2015, 80 FR 75639) and will be further refined in the rulemaking for 
the Public Transportation Safety Certification Training Program.
    Insofar as safety training for transit agency executives, FTA noted 
in its

[[Page 14237]]

Safety Certification Training Program NPRM that 49 U.S.C. 5329(c)(1) 
only contemplates the minimum requirements for Federal and state 
personnel who conduct safety audits and examinations of public 
transportation systems, and employees of public transportation agencies 
who are directly responsible for safety oversight. Thus, this rule does 
not require that executive management and board members for RTAs take 
safety training, nor does this rule preclude transit agency leadership 
from participating in various safety training courses and exercises, 
and FTA strongly encourages their participation.
    ``Risk Control.'' The NPRM included a definition of ``risk 
control,'' but FTA is revising the definition to one of ``Risk 
Mitigation'' to more accurately reflect the terminology amongst SMS 
practitioners. There were no significant comments on the NPRM 
definition.
    ``Serious Injury.'' One of the more significant changes proposed in 
the NPRM was the revision of the accident notification requirement from 
``injuries requiring immediate medical attention away from the scene 
for two or more individuals'' to ``one or more persons suffers a 
serious injury.'' When FTA amended the 49 CFR part 659 rules in 2005, 
FTA acknowledged that the two-or-more person threshold was intended to 
capture ``serious events,'' even if the injuries themselves were minor, 
believing that the accident itself, regardless of the type of injury, 
warranted notification and investigation. As explained in the NPRM for 
this rulemaking, however, a definition of ``serious injury'' should 
align with the nomenclature and thresholds used in other transportation 
agencies with more extensive safety experience, such as the FAA and the 
NTSB. Also, a tighter definition of ``serious injury'' would improve 
data analysis and better identify safety trends.
    Comments Received: A number of commenters disagreed with the 
proposed definition of ``serious injury,'' citing difficulty in 
determining the precise scope of a person's injuries at the scene of an 
event; the medical training required to determine whether a person's 
injuries meet the definition of ``serious;'' the need to monitor an 
individual's condition for days after an event to determine the 
seriousness of his or her injuries; and the difficulty in obtaining 
hospitalization and medical records due to Federal and state medical 
privacy laws. Several pointed out that the NPRM definition of ``serious 
injury'' treated bone fractures with the same seriousness as a 
fatality, thus requiring the same onerous standard of investigation, 
regardless of indication of fault or negligence on the part of the RTA.
    As discussed above under the definition of ``accident,'' two 
commenters suggested that, instead of ``serious injury,'' the SSO rule 
use alternative terms such as ``incapacitating injuries'' (i.e., the 
injury prevents the individual from walking away from the accident 
scene) and ``non-incapacitating injuries'' (i.e., the injury is readily 
observable but does not prevent the person from walking away from the 
scene) as distinguishing factors. Another commenter suggested refining 
the definition to specify those injuries ``that can be determined by 
Transit Agency representatives at the site of an event,'' or ``known or 
observable by the Transit Agency.'' Other commenters suggested that the 
rule divide ``injuries'' into two categories--serious and non-serious.
    Agency Response: FTA respects the views of commenters who would 
prefer a continuation of reporting and notification thresholds under 49 
CFR part 659. In enacting MAP-21, however, Congress made it very clear 
that public transportation safety cannot proceed with business-as-usual 
and that FTA, SSOAs, and RTAs must all increase their efforts to 
improve the safety of public transportation. Towards that goal, FTA 
will proceed with aligning its accident notification thresholds to 
conform to the NTSB's, the independent Federal agency charged by 
Congress with investigating significant accidents in all forms of 
transportation.
    FTA does not expect SSOA or RTA safety personnel 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 pointed 
out, some injuries may be readily known or observable at the scene of 
an event that would trigger the two-hour notification window, while 
other injuries may not be apparent until the person undergoes a medical 
examination, at which point notification would be required.
    Regarding the commenters who suggested that a bone fracture does 
not have the same urgency of notification as a fatality, FTA recognizes 
that a bone fracture may not be readily apparent until the person 
undergoes a more thorough medical examination away from the scene of 
the accident, which is likely to occur more than two hours after the 
event. FTA also recognizes that while both a fatality and a serious 
injury would trigger the notification obligation, the scope of the 
actual investigation for each would differ, which is addressed in the 
discussion of section 674.35, ``Investigations,'' below.
    FTA appreciates the recommendations from commenters who suggested 
using ``incapacitating injury'' and ``non-incapacitating injury'' as a 
means to determine ``serious injuries.'' But as noted above, the goal 
of this rulemaking is to bring the accident reporting practices into 
conformity with those of other Federal agencies with safety reporting 
and investigation procedures, thus this final rule is adopting the FAA 
and NTSB definition of ``serious injury.'' Finally, insofar as the 
suggestion that the rule set a definition of ``non-serious injury,'' 
FTA notes that such a term has not been defined by the NTSB or other 
Federal transportation safety agencies, and FTA is reluctant to invent 
such a definition. Although there is no requirement to report injuries 
that are not serious injuries, FTA encourages RTAs and their SSOAs to 
work together to determine whether injuries other than ``serious 
injuries'' should be reported to the SSOA.
    ``Transit Agency Safety Plan.'' Although FTA received no comment 
regard it use of this term in the NPRM, FTA is replacing it with 
``Public Transportation Agency Safety Plan,'' which is the terminology 
used by the authorization statute, 49 U.S.C. 5329(d).

Section 674.9 Transition From Previous Requirements for State Safety 
Oversight

    When mandating a strengthened SSO program in MAP-21, Congress 
recognized the States would need a period of transition in order to 
enact conforming statutes and regulations, particularly those States 
whose legislatures meet only part-time or biennially. Congress also 
recognized that FTA itself would need time to issue implementing 
rulemakings, and to go through a public notice and comment process. 
Thus, MAP-21 authorized the statute authorizing the current SSO 
program, 49 U.S.C. 5330, to remain in effect for three years after FTA 
promulgates its final rule creating a new SSO program that conforms 
with 49 U.S.C. 5329(e).
    Comments Received: Nearly all of the commenters on this section 
supported the three-year transition process. However, several argued 
that the clock should commence only after FTA has issued its entire set 
of final rules implementing MAP-21's new requirements--the National 
Public Transportation Safety Plan, the Public Transportation Safety 
Certification

[[Page 14238]]

Training Program, and the Public Transportation Agency Safety Plans. 
Some asked for a delay so that RTAs and SSOAs would have a more 
comprehensive view of the new MAP-21 safety program and to ensure 
consistency, while one state DOT predicted it would need an underlying 
Federal mandate before its state legislature would enact enabling 
legislation. Other commenters expressed confusion regarding the 
language used by FTA in the NPRM, noting that the statute allowed a 
three-year transition, while the NPRM stated that 49 CFR part 659 would 
expire immediately upon the effective date of the new rule.
    Agency Response: FTA does not agree with those commenters who 
suggested that the three-year clock not begin until FTA has promulgated 
all of its safety-related rulemakings. Congress was very clear in 
section 20030(e) of MAP-21, that 49 U.S.C. 5330 will be repealed three 
years after the effective date of the final rule issued by the 
Secretary of Transportation under 49 U.S.C. 5329(e), not after FTA 
completes the broader totality of rulemakings required under section 
5329. Further, nearly all of the changes to the SSO program included in 
5329(e) and today's final rule are not dependent on the other 
requirements of section 5329 and are instead designed to strengthen the 
SSO program.
    FTA notes that the vast majority of states with rail fixed guideway 
public transportation systems had successfully established SSOAs prior 
to MAP-21, and expects states to modify their existing SSO programs to 
comply with 49 U.S.C. 5329(e) without waiting for the other FTA 
rulemakings to become final. FTA is well aware that many RTAs will not 
have safety plans compliant with 49 U.S.C. 5329(d)(1) in place for 
SSOAs to oversee and monitor until FTA promulgates a final rule for 
Public Transportation Agency Safety Plans, but this comprises only a 
portion of an SSOA's obligations. Moreover, the safety plans developed 
by RTAs for compliance with 49 CFR part 659 are expressly acceptable 
under the relevant statue, 49 U.S.C. 5329(d)(2), until FTA has 
promulgated a final rule for Public Transportation Agency Safety Plans. 
During this transition period, FTA expects states to provide their 
SSOAs with the necessary statutory and regulatory authority to 
implement MAP-21's requirements, and to remove any administrative and 
financial conflicts of interest. Once FTA issues the final rule for 
Public Transportation Agency Safety Plans, SSOAs should have the 
internal framework in place to oversee an RTA's compliance with its 
updated safety plan. FTA commends the SSOAs who have made progress 
towards full compliance, as evidenced by the Certification Work Plans 
(CWPs) submitted to FTA as part of the SSO Formula Grant Program (see 
79 FR 13380, March 10, 2014).
    With regard to the expiration date of 49 CFR part 659, the NPRM did 
not clearly explain the differences between the effective date of a 
rule and the mandatory compliance date. While rules have an effective 
date of thirty days after publication in the Federal Register, the 
compliance deadline can take place at a later date, as was the case 
with the 2005 amendments to the current 49 CFR part 659. Thus, to 
clarify, today's final rule will have an effective date of thirty days 
following publication in today's Federal Register, but States, SSOAs, 
and RTAs have a compliance deadline up to three years after the 
effective date of today's final rule.
    FTA is aware, through its review of the CWPs, that some states will 
need three years following publication of this final rule before 
becoming fully compliant with the rule, and for that reason, FTA will 
retain 49 CFR part 659 for those states which have not yet implemented 
a fully compliant program. Conversely, the new rules at 49 CFR part 674 
will serve as the appropriate regulation for those states that have 
achieved compliance ahead of the three-year deadline.

Subpart B--Role of the State

Section 674.11 State Safety Oversight Program

    This section of the NPRM addressed the law, rules, and 
administrative standards that FTA expected states to enact as the 
minimum requirements for overseeing the safety of rail fixed guideway 
public transportation systems in the State; the financial, physical, 
and human resources necessary to establish and maintain an SSOA; and 
the system of checks and balances, within state government, that holds 
an SSOA accountable for its actions.
    Comments Received: The majority of commenters to this section noted 
that the text of the proposed rule is very general; it did not provide 
specific criteria, definitions, or instructions for determining whether 
a state's SSO program is in compliance with the Federal standards. 
Commenters expressed concern that it would be difficult for States to 
enact enabling legislation without explicit FTA directions for that 
purpose. Some commenters suggested that FTA provide an SSO program 
standard or a template, or elaborate on the term ``relevant State 
law.'' One commenter recommended that the relevant statutes and 
regulations adopted by states be reviewed and approved by FTA for 
relevance and applicability.
    Some commenters also addressed the human resources requirements of 
this section, noting that SSOAs are expected to staff up their programs 
within a limited time frame and with limited resources, particularly 
with regard to ensuring that SSOA personnel have completed the Safety 
Certification Training Program. They asked whether FTA would allow 
individuals with specialized rail safety-related expertise but without 
the FTA-mandated certifications, such as FRA-certified rail inspectors, 
to assist SSOAs. Several commenters asked FTA to clarify the 
principles, methods, and criteria it would use in determining that a 
state has demonstrated an ``appropriate'' staffing level, and to define 
the specific education and skills required of qualified SSOA personnel.
    Agency Response: With regard to the proposed administrative 
procedures, the requirements in this section have been drawn directly 
from the statute, 49 U.S.C. 5329(e). FTA does not agree with those 
commenters who asked that the rule lay out explicit criteria, 
definitions, or minimum standards with 49 U.S.C. 5329(e) because the 
agency wishes to provide as much deference as possible to states to 
fashion their own legislation for their own needs. FTA recognizes that 
states must be allowed to follow their own unique procedures in 
adopting enabling statutes and regulations with minimal Federal 
interference.
    Nevertheless, FTA believes it has addressed most of the concerns of 
the commenters without any need to amend the text of this rule. Over 
the past several months, FTA has provided extensive technical 
assistance to states in developing Certification Work Plans (CWPs) for 
the revised SSO program. In 2013, FTA reached out to SSOA program 
managers, providing a template and explaining what would be required in 
their CWP in order to be eligible for the SSO Formula Grant funds. FTA 
reviewed the CWPs and their underlying documentation, compared them to 
the statutory criteria, and engaged in one-on-one technical assistance 
calls with SSOAs to ensure that their CWPs were adequate to ensure 
their eligibility to receive the formula grants. In addition, FTA 
initiated quarterly conference calls with the SSOAs, established 
regional points of contact for the SSOAs, and in October 2015, hosted a 
five-day workshop for SSOA program managers to train them on SMS 
principles and to provide an

[[Page 14239]]

opportunity for face-to-face dialogue with FTA staff. FTA believes that 
technical assistance has helped clarify many of the misunderstandings 
about FTA's implementation of the SSO program. Indeed, most states are 
making substantial progress towards meeting the new requirements. FTA 
will continue to review and evaluate CWPs on a state-by-state basis, 
and will certify the compliance of each state as it accomplishes all 
the various elements within its CWP.
    With regard to human resources, FTA recognizes that there is a 
limited pool of certified and knowledgeable individuals who possess the 
necessary certifications to perform SSO functions. FTA has revised the 
text of this rule to allow the use of Federal, state, and local experts 
or the hiring of contractors who are undergoing or who are making 
progress towards compliance with FTA's Safety Certification Training 
Program. Individuals who have not completed or are not enrolled in the 
training program may contribute on an ad hoc basis based on their 
specialized area of expertise, provided that they are under the 
supervision of individuals who have received the necessary training and 
certifications.
    FTA declines to establish regulatory standards to determine whether 
an SSOA's staffing level is ``appropriate.'' Each state is unique in 
terms of the number of RTAs under its oversight and the resources 
available to it, and mandating specific staffing levels violates the 
principles of Federalism. Specifically, Federalism requires that each 
state be allowed to develop an appropriate level of enforcement 
authority unique to that state, and FTA is willing to accept 
flexibility within those approaches, provided that the SSOA possesses 
the necessary enforcement authority to implement its SSO program.

Section 674.13 Designation of Oversight Agency

    This section of the NPRM simply reiterated the statutory 
requirements for the designation and establishment of an SSOA that are 
codified at 49 U.S.C. 5329(e)(4)(A)--financial and legal independence; 
audit, investigation and enforcement authority; safeguards against 
conflicts of interest between an SSOA and the RTAs under the SSOA's 
oversight; and an annual report on the safety of each RTA's system to a 
state's governor, FTA, and to the RTA's board of directors or 
equivalent entity.
    Comments Received: Similar to the concerns raised under the 
previous section, several commenters stated that FTA needed to 
promulgate the remaining safety rules under 49 U.S.C. 5329 before a 
state could designate a SSOA.
    One commenter suggested that an SSOA's reports to an RTA's Board of 
Directors be limited to the years coinciding with triennial audits, 
using the Triennial Audit Report as the basis for a comprehensive 
evaluation, while another suggested that the annual report be provided 
to the General Manager of an RTA instead of the Board of Directors, 
given that the agency's Chief Safety Officer reports directly to the 
general manager or CEO rather than to the Board. Another commenter 
supported submitting the annual report to the Board of Directors, which 
is consistent with the NTSB's recommendation following its 
investigation of the June 2009 WMATA Red Line accident.
    Agency Response: As stated in the responses in the previous 
section, the final rule closely follows the text of the statute. FTA 
allows states maximal flexibility to enact the necessary statutory and 
regulatory provisions for their own SSO programs. And as noted earlier, 
states do not need to wait for the remaining FTA rulemakings before 
designating an SSOA to implement 49 U.S.C. 5329. The system safety 
program plans developed by RTAs under 49 CFR part 659 remain in effect, 
and existing SSOAs must continue to provide oversight of those plans. 
For those states who are establishing a new SSOA or re-designating an 
SSOA, FTA believes today's rule provides adequate guidance and 
direction for providing an SSOA with financial and legal independence; 
the authority to approve, oversee, and enforce a Public Transportation 
Agency Safety Plan; and adequate investigative and enforcement 
authority, without the need to wait for FTA to publish the remaining 
safety rules.
    FTA does not agree with the commenters who suggested that SSO 
reports be issued on a triennial basis or to the General Manager in 
lieu of the Board of Directors. The direction of 49 U.S.C. 5329 is 
clear--the reports must be provided ``at least once annually'' and to 
the ``board of directors or equivalent entity,'' although nothing in 
today's final rule prevents an SSOA from providing an additional copy 
to a general manager and anyone else responsible for safety at the RTA.

Section 674.15 Designation of Oversight Agency for Multi-State System

    The text of the proposed rule closely followed the statutory 
process prescribed for safety oversight of an RTA operating across 
state lines: the states may choose either to apply uniform safety 
standards and procedures to an RTA through an SSO program standard that 
complies with 49 U.S.C. 5329 and is approved by the Administrator, or 
they may choose to designate a single entity that meets the 
requirements for an SSOA to serve as the oversight agency for that RTA, 
again through a program approved by the Administrator.
    Comments Received: FTA did not receive comments specific to this 
section.
    Agency Response: The proposed section is included in the final rule 
without change.

Section 674.17 Use of Federal Financial Assistance

    The text of the proposed rule set forth the administrative 
requirements for recipients of the State Safety Oversight Program 
grants; how the grants may be used for both operational and 
administrative expenses, including employee training; the formula under 
which the funds will be apportioned; the maximum Federal share of 
eligible expenses; and restrictions on the source of the state's 
matching share.
    Comments Received: Several of the commenters to this section 
questioned the sufficiency of the currently authorized SSO funding 
levels, stating that they were not enough to offset the incremental 
costs of a strengthened state safety oversight program. One commenter 
opined that if Federal grants are insufficient to cover the costs of 
complying with all of the proposed regulatory requirements, the new 
rule may result in an overall weakening of state oversight programs, 
rather than strengthening them.
    Other commenters took this opportunity to question FTA's cost 
calculations, claiming the wage rate used is considerably lower than 
the average wage rate in their states; consultant costs are expected to 
be greater than FTA's estimates; training costs will be higher due to 
increased out-of-state travel; FTA's estimate of labor hours do not 
adequately account for all the tasks envisioned under this rule, and 
the cost savings of SMS have not yet been fully demonstrated in the 
aviation industry. One SSOA expressed a concern that prior to MAP-21, 
its program was financially underwritten by the rail systems under its 
jurisdiction, and the SSOA has been unable to secure its state's 
commitment to provide the 20 percent local match.
    Agency Response: FTA appreciates the concerns expressed by 
commenters that the current levels of Federal financial assistance may 
be insufficient to support a fully-compliant SSO

[[Page 14240]]

program. While FTA recognizes that the allocation of funds may be 
insufficient in some states to cover the totality of their oversight 
expenses, the amount of available funds is capped by 49 U.S.C. 
5336(h)(4), which authorizes 0.5 percent of the amounts made available 
to urbanized areas under 49 U.S.C. 5307 to be used for SSOA activities. 
In FY 2013, this amount totaled $21,945,771, and in FY 2014, 
$22,293,250. Further, FTA established a formula to distribute the funds 
in an equitable manner, consistent with the statutory criteria set 
forth in 49 U.S.C. 5329(e)(6)(B)(i) (see, 79 FR 13380). FTA notes that 
the Federal matching funds are intended to supplement, not replace, 
existing state oversight expenditures, and that states should not 
reduce their expenditures down to the minimum 20 percent local share, 
particularly if it would result in a diminution or weakening of safety 
oversight.
    In response to concerns from commenters regarding the cost 
estimations in the NPRM, FTA has revised those costs in the Cost-
Benefit Analysis section of today's publication. Regarding the SSOA 
whose state has not yet committed funding to constitute the local 
match, FTA will work with that state to establish a local match, noting 
the severe consequences outlined in sections 674.19 and 674.21, which 
not only could result in the withholding of SSO grant funds from the 
SSOA, but also the withholding of FTA grant funds from the entire 
state.

Section 674.19 Certification of a State Safety Oversight Program

    In 49 U.S.C. 5329(e), Congress set the framework for FTA 
certification of an SSO program; specifically, the mandate that the 
Administrator make a determination not only whether an SSO program 
meets the technical requirements of the statute, but whether that SSO 
program is adequate to promote the purposes of the National Public 
Transportation Safety Plan and the other goals and objectives of 49 
U.S.C. 5329.
    This section of the proposed rule set forth the requirements and 
the process for certification of a state's SSO program. Specifically, 
section 674.19(a) provided that the Administrator must determine 
whether an SSO program meets the requirements of the statute; section 
674.19(b) required the Administrator to issue either a certification or 
a denial of certification for each state's SSO program; section 
674.19(c) provided that in the event the Administrator issues a denial 
of a certification, he or she must provide the state a written 
explanation and an opportunity to modify its SSO program to merit the 
issuance of certification, and ask the governor to take all possible 
steps to correct the deficiencies that are precluding the issuance of a 
certification.
    Section 674.19(c) also elaborated on the Administrator's authority 
to impose financial penalties for non-compliance, highlighting three 
options: (1) The Administrator can withhold SSO grant funds from the 
State; (2) The Administrator can withhold not more than five percent of 
the 49 U.S.C. 5307 Urbanized Area formula funds appropriated for use in 
the State or urbanized area in the State, until such time as the SSO 
program can be certified; or (3) The Administrator can require all of 
the rail fixed guideway public transportation systems governed by the 
SSO program to spend up to 100 percent of their Federal funding under 
49 U.S.C. Chapter 53 for ``safety-related improvements'' on their 
systems, until such time as the SSO program can be certified.
    Section 674.19(d) stated that in deciding whether to issue a 
certification for a state's SSO program, the Administrator will 
evaluate whether the SSOA has sufficient authority, resources, and 
expertise to oversee the number, size, and complexity of the RTAs that 
operate within the state, or will attain the necessary authority, 
resources, and expertise in accordance with a developmental plan and 
schedule set forth in a sufficient level of detail in the state's SSO 
program.
    Comments Received: Nearly thirty commenters responded to this 
section. The majority expressed the belief that FTA needed to define 
explicit criteria, standards or requirements by which SSO programs will 
be determined to be ``compliant'' or ``certified.'' Several repeated 
requests that FTA clarify what constituted ``sufficient authority,'' 
``appropriate staffing levels,'' or ``qualified personnel.'' Without 
this specific information, commenters felt that FTA's enforcement of 
the rule would be arbitrary and capricious.
    Several commenters repeated concerns noted previously that FTA 
needs to complete all of its safety rulemaking activities before a 
state or an SSOA can develop a comprehensive and compliant SSO program. 
These commenters were unwilling to commit to adopting SSO program 
standards or making costly and time-intensive revisions to their 
current System Safety Program Standard without knowing whether they 
would be consistent with FTA's final regulations.
    Several commenters focused on the financial penalties associated 
with non-compliance, stating that withholding funds from transit 
agencies due to the non-compliance of an oversight agency was excessive 
and unfair, when it was the state, not the transit agency, that failed 
to implement a certified SSO program. Others noted that withholding 
funds from transit agencies because an SSOA failed to obtain 
certification did nothing to improve the SSOA's ability to develop a 
compliant SSO program.
    Finally, some commenters asked FTA to define a ``safety-related 
improvement'' as used in the proposed section 674.19(c), with one 
noting that any infrastructure renewal program could meet this 
definition because maintaining a ``state of good repair'' is integral 
to safety.
    Agency Response: Certifications of compliance will be based on a 
particular SSOA's internal readiness to oversee the RTAs within its 
jurisdiction, using the criteria set forth in the statute and this 
section of the rule. Similar to FTA's current work plan certifications 
to determine a state's eligibility to receive matching grant funds from 
FTA, certifications under this section will also proceed on a case-by-
case basis, recognizing the need for flexibility when dealing with a 
diverse cast of state legislatures, chief executives, constitutional 
and statutory constructs, and SSO regulations. FTA believes that the 
information and technical assistance it has provided to the SSOAs under 
the work plan certifications has been open and transparent, and FTA 
will continue to provide customized, targeted assistance to each SSOA 
as appropriate.
    With regard to the fairness of withholding funds from transit 
agencies within a state whose SSOA has not yet been certified by FTA, 
FTA is legislatively bound to carry out the statutory remedy prescribed 
by Congress. FTA believes Congress was very clear when it set forth the 
penalties for a state's inability or unwillingness to establish an SSO 
program that complied with MAP-21's new requirements, with 49 U.S.C. 
5329(e)(7(D)(ii) specifically directing FTA to withhold up to five 
percent of a state's section 5307 funding for all affected recipients 
in the state, as an incentive to enlist the participation of local 
officials in ensuring that the state will provide the SSO with the 
necessary legal authority and independence and will commit the 
necessary resources.
    FTA declines to provide a definition for a ``safety-related 
improvement'' in today's rule because the scope and nature of the 
improvement will be unique and individualized to each situation, based 
on FTA's review of a particular SSOA and the RTAs

[[Page 14241]]

operating within that SSOA's jurisdiction.

Section 674.21 Withholding of Federal Financial Assistance for 
Noncompliance

    This section of the proposed rule provided that in those instances 
in which the Administrator has discretion to impose financial penalties 
for noncompliance with the SSO requirements, in making a decision 
whether to do so, and determining the nature and amount of a financial 
penalty, the Administrator must consider the extent and circumstances 
of the noncompliance, the operating budgets of both the SSOA and the 
RTAs that will be affected by the penalty, and such other matters as 
justice may require.
    There is one instance in which the Administrator will be unable to 
exercise any discretion to mitigate a very harsh financial penalty for 
noncompliance with the SSO requirements. If a state fails to establish 
an SSO program approved by the Administrator within three years of the 
effective date of today's final rule, FTA will be prohibited by law 
from obligating any Federal financial assistance to any entity in that 
state that is otherwise eligible to receive funding through any of the 
FTA programs authorized by 49 U.S.C. Chapter 53. See 49 U.S.C. 
5329(e)(3). In other words, if, for whatever reason, a state is unable 
or unwilling to come into compliance with the final rule for State 
Safety Oversight within three years after this final rule takes effect, 
all FTA grant funds for all of the public transportation agencies, 
designated recipients, subrecipients, and Metropolitan Planning 
Organizations in that state will be cut off. The statute is designed to 
provide every incentive to a state to develop and carry out an SSO 
program that is compliant with the regulations.
    Comments Received: Comments received to this section were similar 
to the comments received for the preceding section. Commenters asked 
for additional clarifications, definitions, and criteria regarding its 
terms; expressed concerns regarding the unfairness of the statutory 
penalty due to actions by the state that were beyond their control; and 
asked FTA to consider alternatives to the termination of funds.
    Agency Response: FTA assures transit agencies that any cutoff of 
Federal funding will not be immediate and without adequate 
notification. Section 674.19 provides important due process guarantees 
to the state and potentially affected transit agencies. In the event 
the Administrator issues a denial of a certification, he or she must 
provide the state a written explanation and an opportunity to modify 
its SSO program to merit the issuance of certification, and ask the 
governor to take all possible steps to correct the deficiencies that 
are precluding the issuance of a certification.
    In addition, transit agencies fearing a total and immediate 
termination of FTA funding should note that section 674.19(c) provides 
the Administrator with the authority to impose a range of financial 
penalties as authorized by Congress at 49 U.S.C. 5329(e)(7)(D). The 
statute provides the Administrator three options in imposing a 
financial penalty: (1) The Administrator can withhold SSO grant funds 
from the state; (2) the Administrator can withhold not more than five 
percent of the 49 U.S.C. 5307 Urbanized Area formula funds appropriated 
for use in the state or urbanized area in the state, until such time as 
the SSO program can be certified; or (3) the Administrator can require 
all of the rail fixed guideway public transportation systems governed 
by the SSO program to spend up to 100 percent of their Federal funding 
under 49 U.S.C. Chapter 53 for safety-related improvements on their 
systems, only until such time as the SSO program can be certified. The 
appropriate use of each remedy, however, will be determined by FTA on a 
case-by-case basis.
    FTA will make every effort to provide technical assistance to a 
state prior to terminating funds to transit agencies within that state, 
but Congress believed that withholding funds from transit agencies 
would help the state to recognize that public transportation is a 
shared benefit with shared responsibilities, and that states and their 
sub-entities must share the burden of ensuring adequate oversight so 
that transportation is provided in a safe and responsible manner.

Section 674.23 Confidentiality of Information

    When FTA first promulgated its State Safety Oversight rule in 1995, 
FTA recognized that RTAs often face litigation arising from accidents, 
and that the release of accident investigation reports can compromise 
both the defense of litigation and the abilities of RTAs to obtain 
comprehensive, confidential analyses of accidents. Thus, the current 
rule at 49 CFR 659.11 provides that a state ``may withhold an 
investigation report that may have been prepared or adopted by the 
oversight agency from being admitted as evidence or used in a civil 
action for damages. . . .'' Any questions whether to admit 
investigation reports into evidence for litigation are left to the 
courts to determine, in accordance with the relevant state law and the 
courts' rules of evidence.
    The NPRM proposed to clarify, and slightly expand, the rule at 49 
CFR 659.11 by specifying that SSOAs and RTAs may withhold investigation 
reports prepared in accordance with this rule from being admitted as 
evidence or used in a civil action for damages resulting from a matter 
mentioned in the report. In addition, the NPRM proposed to clarify, and 
slightly expand, the current rule by specifying that FTA's SSO 
regulations would ``not require public availability of any data, 
information, or procedures pertaining to the security of a rail fixed 
guideway public transportation system or its passenger operations.''
    Comments Received: The majority of commenters expressed concerns 
whether the proposed language would supersede state public records 
laws. Some pointed out that FTA's language was insufficient to overcome 
their state's laws, asking FTA to strengthen protections for 
confidential information collected by SSOAs and RTAs during the scope 
of an accident investigation, while others noted that their states 
already have provided protection for this kind of information.
    Agency Response: Unlike NTSB accident reports, which cannot be 
admitted into evidence or used in civil litigation in a suit for 
damages arising from an accident, there is no such protection under the 
SSO program. (See 49 U.S.C. 1154(b) regarding NTSB investigations). 
Rather, under today's final rule, states may enact state statutes 
regarding the admissibility into evidence of accident investigation of 
reports conducted in compliance with this Part, noting that any 
protections must be based on state, not Federal, law and rules of 
evidence.
    With regard to records in the possession of FTA, FTA will maintain 
the confidentiality of accident investigations and incident reports to 
the maximum extent permitted under Federal law, including the various 
exemptions under the Freedom of Information Act.

Subpart C--State Safety Oversight Agencies

Section 674.25 Role of the State Safety Oversight Agency

    This section of the NPRM proposed to continue the requirement of 49 
CFR part 659 that the SSOA establish minimum standards for the safety 
of all RTAs within its oversight jurisdiction, review and approve the 
Public Transportation

[[Page 14242]]

Agency Safety Plans, investigate hazards or risks that threaten the 
safety of an RTA, and bear primary responsibility for investigating 
accidents occurring on a rail transit system. This proposed section 
also allowed an SSOA to retain the services of a contractor for 
assistance in investigating accidents and incidents and for expertise 
the SSOA does not have within its own organization, but stated that all 
personnel and contractors employed by an SSOA must comply with the 
requirements of the Safety Certification Training program.
    Comments Received: A number of commenters on this section repeated 
earlier concerns that they would be unable to implement these 
requirements until FTA promulgated the other safety rules under MAP-21 
and they asked that the deadline for this rule be extended until 
stakeholders had a comprehensive understanding of the entire safety 
regulatory structure. Several other commenters suggested that the 
Public Transportation Agency Safety Plans that SSOAs will oversee 
follow the existing 21-point SSPP, with its familiar annual updates, 
approvals, and internal audits.
    A significant number of commenters expressed concerns with SSOAs 
having the primary responsibility for investigating all accidents, 
incidents, hazards, or risks. Numerous commenters cited the resources 
and time it would take to investigate every accident and incident, 
turning SSOAs into investigative agencies rather than oversight 
agencies, and claiming that the new matching grant funds are inadequate 
to underwrite this heightened level of activity. One commenter asserted 
that this investigatory role would require an RTA to lock down an 
accident scene until an SSOA investigator arrived, which could be 
severely disruptive to service.
    Various commenters offered alternatives to the NPRM's approach. 
Several proposed that an SSOA be able to accept an RTA's investigatory 
work, with one asking whether FTA means for an SSOA ``to investigate'' 
or ``cause to be investigated.'' One suggested that the regulatory 
language be amended to state that the SSOA is one of the responsible 
parties to an investigation, while another suggested that the 
regulatory language be amended to allow SSOAs to delegate their 
investigative authority, with one more noting that the NPRM did not 
provide SSOAs with the authority to delegate investigative activities 
to the RTA.
    FTA received several comments regarding the use of contractors and 
their qualifications. Numerous commenters supported the use of 
contractors, noting that there was only a limited pool of qualified 
individuals who could perform the work, but noted that requiring 
contractor personnel to meet the requirements of the Public 
Transportation Safety Certification Training Program would impede an 
SSOA's ability to perform its new duties, particularly if a contractor 
is being employed to perform a very narrow scope of work.
    Agency Response: FTA recognizes that a number of SSOAs will need to 
revise and reissue their minimum standards for safety of rail fixed 
guideway public transportation once FTA promulgates the other safety 
rules required by 49 U.S.C. 5329 to ensure that their state standards 
are consistent with FTA regulations. FTA, though, notes that SSOAs have 
been given three years after the effective date of today's final rule 
in which to modify their procedures to receive, approve and oversee the 
Public Transportation Agency Safety Plans from RTAs within their 
jurisdictions. FTA also notes the distinction between process and 
content--SSOAs must have a process in place by which they will review, 
approve, and oversee implementation of an RTA's Safety Plan. The exact 
content of those plans, however, are the responsibility of each RTA, 
following FTA's publication of the Public Transportation Agency Safety 
Plan Final Rule. Comments concerning whether the 21-point SSPP should 
be retained for the agencies overseen by SSOAs are more appropriately 
addressed in the rulemaking on the Public Transportation Agency Safety 
Plans and FTA anticipates that SSOAs and any other interested parties 
will participate in that rulemaking. Further, as noted above, the SSPP 
required under 49 CFR part 659 will remain in effect until FTA issues a 
final rule for Public Transportation Agency Safety Plans.
    With regard to the primary investigatory role that the NPRM would 
have imposed upon SSOAs, FTA is making revisions in section 674.35 of 
the final rule to acknowledge that while an SSOA does not have to 
investigate all accidents, hazards, and risks, an SSOA does have the 
primary role for approving and overseeing the investigative processes 
of an RTA, and has the authority to require the RTA to initiate an 
investigation. This requires an RTA to address the risks and hazards on 
its property and to investigate all accidents, but still requires the 
SSOA to exercise sufficient oversight to ensure that the RTA is meeting 
its requirements.
    In the final rule, FTA is retaining the requirement that an SSOA 
bears the primary responsibility for investigating any allegation of 
noncompliance with elements of an RTA's Public Transportation Agency 
Safety Plan, which is a duty that cannot be delegated to an RTA. In 
addition, under the final rule, SSOAs have primary responsibility for 
investigating accidents.
    Regarding the use of contractors, FTA recognizes that the pool of 
qualified individuals with transit rail safety expertise is limited, 
and that contractors may be called upon to perform specific tasks on 
behalf of an SSOA, rather than taking on the more extensive duties 
required of an SSOA. For that reason, FTA is revising the last 
paragraph of section 674.25 to require personnel and contractors to 
comply with the Training Certification Program ``as applicable.''
    As an administrative note, FTA is removing the proposed paragraph 
674.25(b) which simply stated that the basic principles and methods of 
SMS are located in Appendix A. Because of the wider applicability of 
SMS to transit agencies and their functions, SMS is being addressed in 
the National Public Transportation Safety Plan and the Public 
Transportation Agency Safety Plan rulemaking.

Section 674.27 State Safety Program Standards

    This section of the proposed rule required each SSOA to adopt and 
distribute a written SSO program consistent with the National Public 
Transportation Safety Plan, the rules for Public Transportation Agency 
Safety Plans and the Safety Certification Training Program, and the 
principles and methods of SMS. Under the proposed rule, the SSO program 
would identify the processes and procedures that govern the activities 
of the SSOA, addressing the oversight authority of the SSOA; the SSOA's 
processes for developing its standards; how the SSOA will apply the 
principles and methods of SMS; the process by which the SSOA will 
receive and evaluate submissions by an RTA; the triennial audit 
process; accident notification procedures; investigations; corrective 
action plans; and annual FTA review of the program standard.
    Comments Received: Similar to the comments received on other 
sections, some commenters cited difficulty in responding to this 
section until FTA issues all of the safety rules under 49 U.S.C. 5329. 
Others asked FTA not to judge or evaluate an SSOA's compliance with 
this section until three years have passed. Some asked FTA to establish 
a template or to provide explicit criteria

[[Page 14243]]

by which FTA would evaluate a State's SSO program standard, while 
others suggested that an SSOA be allowed to delegate or defer accident 
investigations to the NTSB, FTA, FRA, Occupational Health and Safety 
Administration (OSHA), or to the RTA itself.
    Agency Response: FTA has responded to these general comments 
elsewhere in today's publication. The NPRM's proposed rule text was 
designed to build upon the existing requirements in 49 CFR 659.15 and 
659.17. FTA is adopting these requirements in the final rule, albeit 
with the following changes: (1) The proposed text in paragraph 
674.27(a)(3) regarding SMS is being deleted because SMS principles are 
more applicable to RTAs than an SSOA; (2) the paragraph titled 
``Accident and incident notification'' now reflects accidents only; and 
(3) the paragraph titled ``Investigations'' is amended to reflect the 
SSOA's role under section 674.35. Also, FTA is making technical edits 
to insert the correct title of the Public Transportation Agency Safety 
Plan.
    Although FTA appreciates the suggestions that an SSOA be allowed to 
delegate or defer accident investigations to other Federal agencies 
such as FTA, FRA, NTSB or OSHA, those agencies do not have the 
resources to investigate every reportable accident, and FTA does not 
have the authority to direct them to do so. FTA notes, however, that 
several of those agencies have independent statutory authority 
regarding accident investigations, and FTA believes that those agencies 
will use their investigative resources where and when appropriate.

Section 674.29 Public Transportation Agency Safety Plans: General 
Requirements

    This section of the proposed rule required an SSOA to ensure that 
an RTA's Public Transportation Agency Safety Plan is compliant with the 
regulations FTA is promulgating at 49 CFR part 673, and is consistent 
with the National Public Transportation Safety Plan and the SSO program 
standard established by the SSOA.
    Comments Received: Several commenters requested that FTA identify 
explicit criteria by which an SSOA would assess whether an RTA is in 
compliance, claiming that the terms used by the NPRM were ambiguous and 
would lead to confusion and inconsistencies in the RTA's safety plans. 
Others requested a return to the existing certification process of an 
RTA's SSPP under 49 CFR part 659.
    Agency Response: One of the most significant changes in state 
safety oversight under today's rulemaking is the transition from the 
simple review-and-approval of an RTA's system safety program plan to 
the more hands-on, proactive role that Congress required for SSOAs in 
evaluating the effectiveness of an RTA's safety program. This means 
that SSOAs will need to make determinations based on their own 
expertise and authority. Rather than working from a set of prescriptive 
Federal standards, SSOAs must develop their own locally-developed state 
safety program standards and hold RTAs accountable to those standards. 
FTA does not agree that the text of the proposed rule is ``ambiguous'' 
or will lead to ``inconsistencies,'' however, we have made 
modifications to the regulatory text to more closely align with the 
statutory requirements for public transportation agency safety plans.

Section 674.31 Triennial Audits: General Requirements

    The longstanding rule at 49 CFR 659.29 requires an SSOA to conduct 
an ``on-site review'' of an RTA's SSPP at least once every three years. 
The NPRM proposed to continue this timeframe, allowing an SSOA to 
conduct a complete audit of an RTA's compliance with its Public 
Transportation Agency Safety Plan at least once every three years, or 
on an on-going basis over a three-year timeframe. In the preamble of 
the NPRM, FTA suggested that this schedule be established with the 
consent of the RTA.
    Also, in this section of the proposed rule, at the conclusion of 
the three-year audit cycle an SSOA would issue a report with findings 
and recommendations that include, at minimum, an analysis of the 
effectiveness of the Public Transportation Agency Safety Plan, 
recommendations for improvements, and a corrective action plan, if 
necessary. The RTA would be given an opportunity to comment on the 
findings and recommendations arising from the audit.
    Comments Received: Several commenters representing SSOAs expressed 
concerns that the NPRM's suggestion that the three-year cycle be 
established in conjunction with the RTA gave too much authority to the 
subject of the audit and could be perceived as diminishing the 
authority of the auditor, particularly if FTA expected the auditor to 
perform an independent review. Others noted that some SSOAs and RTAs 
have cooperative relationships and have been able to schedule and 
coordinate their triennial audits. Several commenters asked FTA to 
determine requirements for the audit cycle--not the SSOA--and when RTA 
approval is required, with a number of commenters indicating that an 
SSOA should not be required to obtain an RTA's approval to conduct 
audits.
    Agency Response: FTA agrees with the SSOAs who expressed concerns 
that RTAs should not have veto power over the scheduling of an SSOA's 
audit. Although the NPRM expressed optimism that the SSOA and RTA could 
cooperatively determine the scheduling of the triennial audit to best 
coordinate RTA resources and schedules, ultimately it is the 
responsibility of the SSOA, as the oversight agency, to exercise its 
authority in the manner established in its SSO program standard, and it 
is not up to the RTA to approve the scheduling or timing of an audit. 
Therefore, FTA has removed language relating to the RTA ``agreeing'' to 
the audit schedule but otherwise has adopted the NPRM's language 
without substantive change.

Section 674.33 Accident notification

    This section of the NPRM incorporated the two-hour notification 
window for certain types of accidents in the longstanding rule at 49 
CFR 659.33, with two significant changes. The first change was the 
addition of the term ``incident'' to the category of notifiable events. 
The second change was the proposal that FTA be notified along with the 
SSOA.
    As proposed in the ``Definitions'' section of the NPRM, an 
``incident'' was defined as a near miss, close call, a violation of a 
safety standard that poses a hazard to a rail fixed guideway public 
transportation system, or property damage in an amount equal to or 
greater than $25,000. This was based on FTA's view that a near miss or 
close call may be as much or more important as a reporting threshold 
for detecting hazards and mitigating risk as an accident that results 
in personal injury or property damage, and that a violation of a safety 
standard called for notification, regardless of whether the violation 
led to personal injury or property damage.
    FTA also requested simultaneous notification of accidents and 
incidents as a means of increasing FTA's awareness of these events. FTA 
was aware of electronic notification systems that a number of RTAs are 
using to inform multiple parties of accidents, including the 
notification system that railroads provide to the FRA via the National 
Response Center, and FTA believed that adding FTA to an automated list 
of addressees would require minimal effort, noting that the

[[Page 14244]]

specific manner of reporting would be determined via an electronic 
reporting manual that would be issued following publication of this 
rule.
    Comments Received: As discussed in the ``Definitions'' section 
above, FTA received numerous comments regarding the definition of 
``incident'' and the undue burden it would impose if RTAs were required 
to report all accidents and incidents to their SSOAs. SSOAs who 
commented did not disagree so much about the notifications it would 
receive of both accidents and incidents, but rather, on the obligation 
to investigate every notifiable event, as required in the proposed 
section 674.35, ``Investigations,'' below.
    FTA also received comments regarding the manner of providing 
simultaneous notification to FTA via the same method used by the RTA to 
notify its SSOA. Several noted that the notification procedures should 
be established by regulation, rather than through an electronic 
reporting manual that can be changed whenever FTA decides to make a 
change. One commenter suggested using a negotiated rulemaking to gain 
the approval of SSOAs and RTAs in developing notification and reporting 
thresholds. A couple of commenters noted that rather than requiring an 
RTA to send separate notifications to FRA, OSHA, NTSB, the SSOA, and 
now FTA, FTA should consider utilizing the National Response Center 
model whereby one notification received from an RTA is delivered 
simultaneously to the relevant governmental agencies. Finally, one 
commenter suggested that because this rule is intended to promote 
greater state diligence and authority in overseeing rail transit 
safety, the SSOAs should be the parties responsible for notifying FTA.
    Agency Response: In response to the concerns raised by the 
commenters, FTA is deleting ``incidents'' as an event triggering the 
two-hour notification window in this section. FTA believes that an 
SSOA's resources are best used by investigating accidents, while 
incidents will continue to be investigated by the RTA and reported to 
FTA within 30 days of the event through the National Transit Database 
(NTD) safety and security reporting module. Noting the heightened 
safety oversight role for SSOAs under 49 U.S.C. 5329(e) and today's 
rule, FTA expects SSOAs to be aware of all reportable incidents 
occurring at RTAs under their oversight, and to that point, FTA will 
provide SSOAs with electronic access to the NTD to allow them to review 
NTD accident reports on a regular basis. In addition, States may allow 
or require SSOAs to request these reports directly from the RTA.
    With regard to the FTA notification process, FTA is retaining this 
requirement in the final rule. Although it was not feasible to 
prescribe an exact notification process in today's rule, particularly 
since FTA would have been doing so without the notice and comment 
process requested by stakeholders, FTA will be working with 
stakeholders to develop guidance for an electronic notification 
process. FTA appreciates the concern of the commenter who suggested 
that the SSOA should have the primary responsibility for notifying FTA, 
but since it is the RTA that must create the initial notification, FTA 
believes it is more practicable for the RTA to add FTA to its addressee 
list rather than requiring the SSOA to do so.
    FTA also appreciates the commenters who suggested that FTA utilize 
the National Reporting Center (NRC) as a means of distributing accident 
reports to relevant governmental agencies. FTA notes, however, that 
only commuter railroads and a handful of rail transit agencies covered 
under the FRA's regulatory jurisdiction are required to submit reports 
to the FRA's NRC (see 49 CFR 225.3), which excludes the vast majority 
of RTAs from this requirement. Extending the NRC reporting mandate to 
all RTAs would also require approval from the White House Office of 
Management and Budget under the Paperwork Reduction Act, which FTA and 
FRA are not prepared to pursue at the present.

Section 674.35 Investigations

    In enacting MAP-21, Congress decided that both FTA and the States, 
through their SSOAs, would have concurrent authority to investigate any 
accident involving the safety of a rail transit vehicle or taking place 
on the property of an RTA. Because MAP-21 provided SSOAs with the 
financial resources to conduct investigations, and required 
professional training and certification of their employees to 
investigate accidents, this section of the NPRM proposed to require an 
SSOA to conduct an ``independent investigation'' of any accident or 
incident that an RTA reports to the SSOA. Also, the proposed rule would 
have required the SSOA to issue a written report on its investigation 
of an accident or incident that identified the factors that caused or 
contributed to the accident or incident, described the SSOA's 
investigation activities, and set forth a corrective action plan, as 
necessary or appropriate. The report was to be transmitted to the RTA 
for review and concurrence, and if an RTA did not concur in an SSOA's 
investigation report, the SSOA could allow the RTA to submit a written 
dissent from the report, and the SSOA could include the RTA's dissent 
in the report, albeit at the discretion of the SSOA.
    In addition, this section of the proposed rule would have required 
all personnel and contractors conducting investigations for an SSOA to 
be trained to conduct investigations in accordance with the Safety 
Certification Training program.
    Comments Received: All thirty-six commenters to this section 
disagreed with the proposed language that would require an SSOA to 
conduct an ``independent investigation'' of any reportable accident or 
incident. As addressed in previous sections, commenters primarily cited 
the significant time and resource burden it would place on SSOAs and 
the inadequacy of the Federal grant funds to cover the incremental 
costs of conducting these investigations.
    Numerous commenters pointed to the adequacy of the investigation 
process under the existing 49 CFR part 659 process. According to one 
commenter, SSOAs often delegate the investigatory process to the RTA 
and accept the conclusions of the RTA's investigation, but only after a 
rigorous review, comment, and approval period whereupon the SSOA has 
the ability to reject investigation reports that do not adequately 
address all of the causal and contributing factors, lack appropriate 
corrective actions, or suffer from any similar deficiency. Other 
commenters noted that the SSOA's role is one of oversight, and that 
while the RTA should bear the responsibility to generate its own 
accident investigation report, the SSOA should retain the final 
decision whether an independent accident investigation is warranted.
    One commenter expressed dismay that if an RTA did not concur in an 
SSOA's investigation report, its only recourse was to submit a written 
dissent, which the SSOA could include at its discretion. The commenter 
claimed that unless the dissent was included, there would be no record 
documenting the RTA's attempts to develop an alternative solution.
    Agency Response: FTA finds these arguments persuasive. Consistent 
with the current practice under 49 CFR part 659, SSOAs will retain 
their oversight role only, and may continue to direct RTAs to conduct 
initial inspections and investigations. However, under the strengthened 
SSO regimen of 49 U.S.C. 5329, an SSOA must conduct an independent 
review of an RTA's

[[Page 14245]]

investigative findings. Should an SSOA determine that an RTA's 
investigation is inadequate, it may conduct its own independent 
investigation. In addition, FTA may initiate its own investigation 
under the authority prescribed at 49 U.S.C. 5329(f) and implemented in 
the proposed Public Transportation Safety Program at 49 CFR part 670.
    With regard to the commenter who objected to the SSOA's discretion 
to exclude an RTA's dissent from the SSOA's investigatory report, FTA 
recognizes that it is the SSOA, and not the RTA, that is ultimately 
responsible for the outcome of the investigation, and therefore has the 
discretion to determine whether a written dissent is relevant to the 
report.

Section 674.37 Corrective Action Plans

    This section of the proposed rule stated that in any instance in 
which an RTA must develop a corrective action plan (CAP), the SSOA must 
first review and approve the plan before the RTA carries it out. The 
rationale was to ensure that the RTA is taking adequate steps to avoid 
or mitigate the risks and hazards that led to the plan, has adopted a 
realistic schedule for taking the corrective actions, and identified 
the persons responsible for taking the corrective actions.
    Also the proposed rule required the RTA to periodically report its 
progress in carrying out a corrective action plan, and authorized the 
SSOA to monitor the RTA's progress through unannounced, on-site 
inspections, or any other means the SSOA deemed necessary or 
appropriate. Additionally, in any instance in which the NTSB had 
conducted an investigation, an SSOA could evaluate whether the NTSB's 
findings and recommendations warranted a corrective action plan by the 
RTA, and if so, the SSOA had the authority to order the RTA to develop 
and carry out a corrective action plan.
    Comments Received: FTA received numerous comments on this section 
of the NPRM. Most commenters agreed that it should be the 
responsibility of the RTA, and not the SSOA, to develop a CAP. Rail 
transit agencies are more knowledgeable about their systems, and are 
therefore better suited for developing CAPs, which would then be 
submitted to the SSOA for their review and approval. One SSOA noted the 
positive relationship it has with its RTA in which the RTA develops a 
CAP and shares it with the SSOA, with both parties working 
collaboratively to address any concerns that arise.
    A number of commenters expressed concerns with the proposal that an 
SSOA review and approve a CAP before an RTA can begin its 
implementation. They felt this would not make sense where the RTA 
discovers an imminent hazard or risk, or a potential catastrophic event 
that required immediate corrective action that should not wait for a 
time-intensive approval process.
    Several commenters noted that it would be problematic for an SSOA 
to conduct unannounced on-site inspections of an RTA during the course 
of monitoring implementation of a CAP because of safety rules at the 
RTA that might require escorts in hazardous areas.
    Agency Response: FTA agrees with those commenters who characterized 
CAPs as a joint effort to be developed in a collaborative manner, 
particularly since both an SSOA and an RTA have a shared and critical 
interest in safety. FTA agrees with commenters that an RTA should be 
given the opportunity to present a CAP to an SSOA for its review and 
approval, particularly since the RTA is most familiar with the risks 
and hazards within its system. While FTA does not believe it is the 
responsibility of the SSOA to develop CAPs for an RTA, ultimately it is 
the responsibility of the SSOA, as the oversight agency, to ensure that 
RTAs are developing and implementing appropriate CAPs.
    With regard to the pre-approval process, FTA agrees with those 
commenters who described the impracticality of awaiting SSOA approval 
of a CAP to address an immediate or imminent risk or hazard, and FTA is 
modifying the language in section 674.37(a) of the final rule 
accordingly.
    With regard to the commenters who raised safety concerns regarding 
unannounced, unplanned on-site inspections, FTA acknowledges that this 
requirement does not override an RTA's own safety policies and 
procedures, particularly where SSOA staff may want to enter trackways 
and other potentially hazardous areas. FTA strongly encourages SSOAs to 
ensure that their personnel conducting the inspections have completed 
the necessary qualifications and training, attended the requisite 
safety briefings, and possess the appropriate safety equipment prior to 
engaging in a track inspections or similar activity, which are part of 
the qualifications required for SSOA personnel addressed in subsection 
674.11(e) of the final rule.

Section 674.39 State Safety Oversight Agency Annual Reporting to FTA

    This section of the proposed rule was based on the structure of the 
current 49 CFR 659.39, insofar as the data and information SSOAs must 
report to FTA on an annual basis, with a few additions and revisions, 
as follows. First, under proposed subsection 674.39(a)(2), an SSOA 
would be obliged to submit evidence once a year that each of its 
employees and contractors is in compliance with the applicable Safety 
Training Certification requirements. Second, under proposed subsection 
674.39(a)(4), an SSOA would be obliged to submit a summary of the 
triennial audits completed during the preceding year, and the RTA's 
progress in carrying out any CAPs arising from those audits. Third, 
under proposed subsection 674.39(a)(5), an SSOA would be obliged to 
submit evidence of its review and approval of any changes to Public 
Transportation Agency Safety Plans during the preceding year.
    Comments Received: Six commenters responded to this section, with 
one indicating that a publicly available report would be useful for 
annual review, discussion, and training within an RTA. Conversely, some 
commenters questioned the need for FTA to expand reporting requirements 
to include ``incidents'' such as safety rule violations, and stated the 
annual reports would do little to assist FTA, the State, and the RTA's 
board of directors in assessing the functional safety of an RTA. One 
commenter asked if FTA would allow electronic submission of the 
reports, with another suggesting FTA improve its existing online annual 
reporting system for the National Transit Database.
    Agency Response: FTA agrees with the commenter who views the annual 
reports as useful. FTA does not agree with the commenter who questions 
the need for additional reporting, however, MAP-21 calls on FTA, SSOAs, 
and RTAs to establish a more vigorous and extensive safety program. 
Tracking ``incidents'' as leading indicators of potential safety 
hazards is a vital component of the stronger safety program under 49 
U.S.C. 5329. Although FTA appreciates the suggestions from commenters 
regarding improvements to FTA's electronic submissions portal, those 
comments do not require amendments to the proposed text. Therefore, FTA 
is adopting the proposed rule text without substantive change.

Section 674.41 Conflicts of Interest

    The proposed subsection 674.41(a) incorporated a fundamental change 
enacted by MAP-21: an SSOA must now be both financially and legally 
independent from any rail fixed guideway public transportation system 
under the oversight of the SSOA. See 49

[[Page 14246]]

U.S.C. 5329(e)(4)(A)(i). The only exception to this requirement would 
be an instance in which the Administrator has issued a waiver based on 
the relatively small annual fixed guideway revenue mileage in a state 
(less than one million actual and projected (i.e., new construction) 
revenue miles, in total), or the relatively small number of unlinked 
passenger trips carried by all the rail transit systems in a state, on 
an annual basis (fewer than ten million actual and projected unlinked 
passenger trips, in total). See, 49 U.S.C. 5329(e)(4)(B).
    The proposed subsection 674.41(b) would fundamentally change the 
current rule to make it clear that an SSOA may not employ any 
individual who provides services to a rail fixed guideway public 
transportation system under the oversight of the SSOA. Also, the 
proposed rule would delete the reference in the current rule to state 
law determinations of conflict of interest. Again, however, the 
Administrator could issue a waiver from this requirement on the basis 
of the relatively small annual fixed guideway revenue mileage (less 
than one million miles) in a state or the relatively small number of 
unlinked passenger trips per year (less than 10 million unlinked trips) 
in a state, using the same thresholds as specified in proposed section 
674.41(a). Finally, the proposed subsection 674.41(c) would make it 
clear that a contractor may not provide its services to both an SSOA 
and an RTA under the oversight of that SSOA. There is no waiver 
available with respect to this particular requirement.
    Comments Received: The commenters responding to this section 
generally agreed that rail transit safety is highly specialized, and is 
problematic to implement, given that there are very few contractors 
available with the skill and expertise to assist either transit 
agencies or SSOAs with the program. One of the commenters stated that 
the proposed prohibition on conflicts of interest is not supported by 
49 U.S.C. 5329 and suggested that FTA withdraw these prohibitions. 
Another recommended that the final rule make clear that the SSOA may 
request a waiver from this requirement, given the broad number of 
consultants employed by an RTA under its jurisdiction. One commenter 
suggested that the rule specify a minimum requirement for an SSOA to 
verify a contractor is not providing services to both an SSOA and an 
RTA, noting there is no regulatory requirement or means established for 
the SSOA to be made aware of the contractors providing services to the 
RTAs it oversees to ensure compliance with this requirement.
    One commenter asked whether an SSOA will be able to use a 
consultant previously employed by an RTA to assist with the development 
of its program standard, while another recommended that FTA add a new 
subsection that would prohibit an SSOA from employing former RTA 
personnel to oversee that transit agency.
    Agency Response: FTA is aware there is a small number of 
consultants in the field of rail transit safety. Given the uniqueness 
of the market, SSOAs may have difficulty finding consultants who are 
not also employed by RTAs. Although 49 U.S.C. 5329 does not expressly 
prohibit a conflict of interest for consulting contractors, the 
longstanding rule at 49 CFR 659.41 currently states that the SSOA shall 
prohibit a party or entity from providing services to both the SSOA and 
the RTA, if the state recognizes a conflict of interest. FTA notes that 
SSOAs and RTAs have been able to comply with 49 CFR 659.41 without the 
need to seek a waiver or otherwise being hindered in their ability to 
carry out their respective duties. However, FTA is also aware of the 
growth of large, multi-faceted consultancy firms that are capable of 
providing services to both SSOAs and RTAs. Thus, FTA is adding a waiver 
provision to the final rule at 674.41(c), similar to that in 674.41(a) 
and (b), which allows the Administrator to waive a consultant's 
conflict of interest if the SSOA can demonstrate adequate 
administrative and legal separation between a contractor employed by an 
SSOA and an RTA.
    With respect to the suggestion to prohibit an SSOA from employing 
former RTA personnel to oversee that system, FTA believes that is a 
matter for the RTA, as an employer, to establish as a term and 
condition of that employee's post-employment restrictions, noting the 
views from commenters regarding the lack of trained safety personnel 
capable of carrying out rail transit safety oversight responsibilities. 
It is not feasible for FTA to establish a means whereby an SSOA could 
determine whether a consulting contractor is already providing services 
to an RTA within that SSOA's jurisdiction. Nevertheless, FTA believes 
that the SSOA can readily determine whether a conflict exists through 
the SSOA's contracting or bidding process, in which a contractor must 
disclose any potential conflicts of interest.

General: Economic Burden

    Comment Summary: FTA received six comments regarding the NPRM's 
economic burden estimates. Several commenters claimed that FTA had 
underestimated the level of burden due to the increased oversight 
requirements, in particular the lack of funding for the additional 
requirements; omission of oversight activities; the added burden of 
reporting and data management, and an underestimate of labor hours and 
cost.
    One commenter estimated the cost of implementing the proposed rule 
for their transit agency for the first year, noting that this cost 
would not be eligible for the capital grant funding assistance provided 
by FTA, thereby burdening local funding partners with an unfunded 
mandate instead. Another respondent commented on a number of omitted 
oversight tasks that would be detrimental to the SSOA's ability to 
implement the minimum requirements of the proposed SSO program, but did 
not specify what they were.
    Two commenters mentioned the increased burden of additional 
notifications, investigations and reporting requirements resulting from 
broadened definitions of accidents, incidents and occurrences, without 
potential increase in safety benefits. Another commenter noted the 
additional costs of data collection, management and analysis, a 
cornerstone of implementing SMS. While the RTA currently collects this 
data, it is not all on the same data systems or on compatible data 
systems. The RTA would need to develop data systems and analytical 
tools to meet the requirements of other safety rules still pending, 
making it difficult to know the cost of the rule.
    One commenter said that the labor hours and costs were grossly 
underestimated, despite which the estimated costs show a four-fold 
increase over current costs. Also, they noted that other rules will 
further change the current rail safety program rule (49 CFR part 659) 
requirements.
    FTA Response: It is difficult for FTA to respond to RTA cost 
estimates of the likely burden of the new proposed rule without 
knowledge of specific data or knowing what the additional burdens would 
be if they are not specified. The requirements of the SSO rule pertain 
to responsibilities that an SSOA will carry out and only slightly 
impact the RTAs through additional reporting and investigations. The 
additional economic cost to the RTAs is not expected to be significant 
and MAP-21 authorized FTA to provide supplemental funding to SSOAs to 
offset their oversight expenses.
    In response to the comments to the NPRM, FTA has undertaken the 
following actions that will reduce the economic burden estimates of the 
proposed final SSO rule. First, RTAs

[[Page 14247]]

will now only be required to report incidents that affect the 
operations of the RTA. This means near misses/close calls or safety 
rule and policy violations are no longer required to be reported to the 
SSOA or FTA, eliminating the cost of conducting an investigation. 
However, RTAs are still required to collect this information and make 
it available to SSOAs or FTA during an investigation or audit to reduce 
recurrences and support the practice of SMS. The reduction in the 
number of injuries triggering the accident notification threshold from 
two individuals down to one person could increase the number of 
accidents reported by about 7,000 incidents per year, but redefining 
``accident'' to include only serious injuries is likely to reduce the 
number of overall events triggering notification and a subsequent 
investigation. Based on an FTA study on the cost of reporting to NTD, 
the new requirements will not significantly increase reporting costs 
for agencies, likely less than a few thousand dollars across the 
industry in the first year, and half of that in subsequent years. 
Similarly, the additional accidents that must be investigated under the 
new definitions will not be too burdensome since they will require a 
lower level of investigation effort than the more serious incidents 
involving fatalities and derailments, likely less than $100,000 a year 
for the RTAs and SSOAs.
    FTA recognizes that relevant safety information may be stored 
electronically and require investment in data systems to better analyze 
the data to support SMS practices. SMS is mentioned by reference in the 
proposed rule since SSOAs will be responsible for ensuring that SMS 
principles are adopted into the transit agency safety plans and 
practiced to improve safety performance. The full cost of implementing 
SMS principles will be included in the Public Transportation Agency 
Safety Rule. Similarly, the costs of training are included in the 
Public Transportation Safety Certification Training Program.
    FTA acknowledges that the labor costs were underestimated in the 
NPRM since it did not include full labor costs. Consequently, the labor 
costs have been revised to include a 56 percent allowance for employee 
fringe benefits based on Bureau of Labor Statistics data for 2014. In 
addition, the labor cost for investigations has also been revised to 
reflect a higher cost for this specialty, and the numbers for labor 
hours for investigations have also been revised based on comments 
received through the NPRM. The economic burden estimates for the final 
rule are now revised to reflect the redefined role of the SSOA in 
accident investigations.

Appendix A: Safety Management Systems (SMS) Framework

    FTA is removing the SMS Appendix that appeared as Appendix A in the 
NPRM and, instead, is republishing it in the proposed Public 
Transportation National Safety Plan. FTA is replacing Appendix A with a 
table addressing the notification and reporting requirements for 
accidents, incidents, and occurrences; and providing representative 
examples of each. FTA has published the SMS Framework at: https://www.fta.dot.gov/documents/FTA_SMS_Framework.pdf, and interested 
stakeholders have an additional opportunity to provide comment through 
the National Public Transportation Safety Plan docket (FTA-2015-0017).

IV. Rulemaking Analyses and Notices

    All comments received on or before the close of business on the 
comment closing date indicated above were considered and are available 
for examination in the docket at the above address.

Executive Orders 13563 and 12866; USDOT Regulatory Policies and 
Procedures

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

Existing 49 CFR Part 659 Program Requirements and Activities

    As stated in the Background section above, this rule replaces a set 
of regulations that have been in place since December 27, 1995, and 
codified at 49 CFR part 659. As such, this rule applies to a discrete 
subsection of the public transportation industry--recipients of Federal 
funds under 49 U.S.C. chapter 53 that operate rail fixed guideway 
transit systems not subject to the jurisdiction of the FRA; the states 
in which those rail systems operate; and the SSOAs that exercise 
oversight over the safety of those rail systems.
    Through the implementation of 49 CFR part 659, the states, SSOAs, 
and RTAs affected by 49 U.S.C. 5329(e) already engage in core 
activities that address many of this rule's requirements. In practical 
terms, many of the changes required by this rule serve to increase the 
frequency and/or comprehensiveness of activities that are already 
performed, such as reviews, inspections, field observations, 
investigations, safety studies, data analysis activities, and hazard 
management. Costs of the rule are therefore presented as the difference 
between the costs of SSOA and RTA activities as required under the 
final rule, less the costs of activities under the current program (49 
CFR part 659).

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

    Pursuant to 49 CFR part 659, FTA collects annual information from 
the SSOAs regarding the hours they expend to implement SSO requirements 
for the RTAs in their jurisdictions. Based on this information, when 
totals are averaged for the last three reporting years (CY 2011-CY 
2013), FTA has determined that the 28 covered SSOAs expend 
approximately 108,484 total hours per year implementing 49 CFR part 659 
requirements. While these hours average out to roughly 3,774 per state 
per year, there is wide variation across the states in terms of the 
total level of effort devoted to compliance with 49 CFR part 659. Some 
states, such as California, oversee multiple RTAs with two or more 
full-time equivalents (FTEs) devoted to each system. Most states 
covered by 49 CFR part 659, however, have one rail fixed guideway 
system and devote between 0.5 and 1 FTEs per year to implementing 49 
CFR part 659 requirements for that system, supplemented by contractor 
resources for major activities, such as triennial reviews and accident 
investigations.
    The table below illustrates the break-down of activities and labor 
hours

[[Page 14248]]

currently expended to implement 49 CFR part 659 by states and SSOAs. In 
order to facilitate comparison with today's rule, the table uses 
activities required under 49 CFR part 674. Readers should note that 
some activities reflect a zero dollar cost because they were not 
required under 49 CFR part 659. Costs per hour are based on the 2014 
Bureau of Labor Statistics (BLS) average wage rate of $44.47 per hour 
for state and local government operations managers, including a load 
factor for fringe benefits \1\ that brings the total loaded cost per 
hour to $69.37. Given the special training required for accident 
investigators, a separate wage rate of $65 per hour is used for 
investigators, which yields a total loaded cost of $101.40 per hour 
when the same fringe benefit adjustment is made. The level of effort 
equates to an annual cost of approximately $7.7 million for states and 
SSOAs to implement 49 CFR part 659 requirements nationwide.
---------------------------------------------------------------------------

    \1\ BLS data shows that wages are 64.1 percent of total 
compensation costs while benefits are 35.9 percent. This is based on 
an employer cost for employee compensation BLS News Release from 
September 2013 (https://www.bls.gov/news.release/pdf/ecec.pdf). 
Therefore, to derive the total compensation costs based on wages, 
one must factor wages by 1.56 (64.1 + 35.9/64.1). Benefits included 
in this adjustment include paid leave, supplemental pay, insurance, 
retirement and savings, and legally required benefits such as social 
security and Medicare.
---------------------------------------------------------------------------

    The table also identifies one-time, non-recurring activities with 
an asterisk (*). These activities, such as establishing standards and 
procedures, are performed initially to establish the System Safety 
Program Standard for a state implementing 49 CFR part 659. These costs 
are listed to reflect the reality that new states and RTAs are joining 
the SSO program each year. In fact, since January 1, 1997, when the 
December 27, 1995, rule implementing 49 CFR part 659 went into effect, 
the SSO program has grown by 40 percent, increasing from 19 SSOAs and 
32 RTAs to 28 SSOAs and 48 RTAs. However, for calculation purposes, 
non-recurring costs of existing activities are considered sunk costs.

  Baseline: Annual SSOA Activity To Implement Requirements Under 49 CFR
                                Part 659
                 [Mapped to provisions of proposed rule]
------------------------------------------------------------------------
     State oversight agency activity        Labor hours     Total cost
------------------------------------------------------------------------
 Explicit Acknowledgement of                   0              $0
 State Responsibility to Oversee Safety
 of Rail Transit Agencies in
 Engineering, Construction and
 Operations *...........................
 Demonstrate Authority to Adopt                0               0
 and Enforce State and Federal
 Regulations *..........................
 Demonstrate Adequate/                         0               0
 Appropriate Staffing Level *...........
 Demonstrate Qualification and                 0               0
 Certification of Staff *...............
 Demonstrate by Law Prohibition                0               0
 against Receiving Funding from Rail
 Transit Agency *.......................
Sec.   674.13 Designation of oversight
 agency:
     Legal and Financial                       0               0
     Independence Procedures and
     Disclosures *......................
     Annual Updates and Legal                  0               0
     and Financial Independence
     Disclosures........................
     Documentation of No                       0               0
     Provision of Transit Service.......
     Documentation of No                       0               0
     Employment for Personnel
     Administering Rail Transit Programs
     Establish and Document                    0               0
     Authority to Review, Approve,
     Oversee, and Enforce Agency Safety
     Plan *.............................
     Establish and Document                    0               0
     Investigative and Enforcement
     Authority *........................
Sec.   674.15 Designation of oversight                 0               0
 agency for multi-state system..........
Sec.   674.17 Use of Federal financial
 assistance:
     Identifying and Providing                 0               0
     Appropriate Match for Grant Program
     *..................................
     SSO Grant Management and                  0               0
     Reporting Activities...............
Sec.   674.19 Certification of a State
 Safety Oversight Program:
     Certification Pre-Submittal               0               0
     Documentation to FTA...............
     Work Plan and Quarterly                   0               0
     Updates to FTA.....................
     Initial Certification                 2,860         198,407
     Documentation......................
     Final Certification                       0               0
     Documentation......................
     Maintenance of Annual                     0               0
     Certification......................
Sec.   674.21 Withholding of Federal                   0               0
 financial assistance for noncompliance.
Sec.   674.23 Confidentiality of
 information:
     Develop and adopt                         0               0
     procedures/regulation to withhold
     an investigation report from being
     admitted as evidence or used in a
     civil action *.....................
Sec.   674.25 Role of the State safety
 oversight agency:
     Establish minimum standards               0               0
     for the safety of rail transit
     agencies *.........................
     Update minimum standards as               0               0
     needed or required.................
     Review and Approve Agency             3,840         266,393
     Safety Plan (Sec.   674.29 Public
     Transportation Agency Safety Plans:
     General requirements)..............
     Review and Approve                    3,072         213,114
     Supporting and Referenced
     Procedures.........................
     Review and Approve Annual             3,072         213,114
     Updates to Agency Safety Plan and
     Supporting and/or Referenced
     Procedures.........................
     Oversee the Transit                   8,448         586,065
     Agency's execution of its Public
     Transportation Agency Safety Plan..
     Enforce the execution of a                0               0
     Public Transportation Agency Safety
     Plan, through an order of a
     corrective action plan or any other
     means, as necessary or appropriate.
     Ensure that a Public                      0               0
     Transportation Agency Safety Plan
     meets the requirements for Public
     Transportation Agency Safety Plans
     at 49 U.S.C. 5329(d) and the
     regulations that are or may be
     codified at 49 CFR Part 673........
     Investigate any hazard or            19,200       1,331,965
     risk that threatens the safety of a
     Rail Transit Agency................
     Investigate any allegation                0               0
     of noncompliance with a Public
     Transportation Agency Safety Plan..
     Exert primary                             0               0
     responsibility to investigate each
     Rail Transit Agency accident.......
     Enter into agreements with                0               0
     contractors........................
     Comply with the                       3,840         266,393
     requirements of the Public
     Transportation Agency Safety
     Certification Training Program.....
Sec.   674.27 State safety program
 standards:

[[Page 14249]]

 
     Develop and adopt program             1,400          97,122
     standard *.........................
     Develop and adopt program             1,400          97,122
     procedures *.......................
     Develop and adopt Safety                  0               0
     Management Systems oversight
     principles and oversight methods *.
     Review and update program             2,912         202,015
     standard and procedures............
Sec.   674.31 Triennial audits: general
 requirements:
     Conduct Three Year Audit...           9,216         639,343
     Document Results and                 13,440         932,376
     Findings...........................
Sec.   674.33 Notifications: Accidents
 and other incidents:
     Receive and track                         0               0
     notification of accidents..........
     Report to FTA..............               0               0
Sec.   674.35 Investigations:
     Prepare Accident                      5,376         545,126
     Investigation Report...............
     Review, Approve and/or                6,144         623,002
     Adopt Accident Investigation
     Reports............................
Sec.   674.37 Corrective action plans...          15,360       1,065,572
Sec.   674.39 State Safety Oversight               3,528         244,749
 Agency annual reporting to FTA.........
Sec.   674.41 Conflicts of interest.....               0               0
Travel..................................           5,376         372,950
                                         -------------------------------
        Total Recurring Hours and Costs.         105,684       7,700,586
                                         -------------------------------
        Total Non-recurring Hours and              2,800        $194,245
         Costs..........................
------------------------------------------------------------------------
* Non-recurring cost.

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

    Based on information collected from SSOAs in annual reports and 
previous assessments conducted by the Government Accountability Office 
and the NTSB, FTA has also established the level of effort required to 
implement 49 CFR part 659 requirements for the 48 RTAs covered by the 
regulation. Based on this data, FTA has determined that each year, RTAs 
expend approximately 156,668 hours implementing relevant 49 CFR part 
659 requirements.
    While these hours average out to approximately 3,264 per RTA per 
year, there is variation in the rail transit industry based on the size 
of rail fixed guideway systems. The nation's five largest RTAs each 
employ between 6 and 15 full-time equivalents who work exclusively on 
49 CFR part 659 activities. Most of the remaining RTAs devote between 
0.5 and 2 FTEs to implement 49 CFR part 659 activities. Major 
activities performed by the RTAs to implement 49 CFR part 659 include 
developing safety and security plans and procedures; conducting 
internal reviews and audits to assess the implementation of safety and 
security plans; conducting accident and incident investigations; 
identifying, assessing and resolving hazards and their consequences; 
managing safety data acquisition and analysis; coordinating with 
emergency response planning; and communicating with/responding to the 
SSO agency through reports, meetings, teleconferences, emails, 
training, submittals and support for field observations and reviews.
    Using the same 2014 BLS wage data and fringe adjustment as above 
(for a total loaded rate of $69.37 for staff time and $101.40 for 
investigations), FTA has determined that the rail transit industry 
spends about $11.8 million per year to implement the 49 CFR part 659 
requirements nationwide. FTA's table below reflects non-recurring costs 
required for new RTAs covered by 49 CFR part 659, and for existing RTAs 
to address new extensions and capital projects, once they become 
operational, as averaged over the last three years.

 Baseline: Annual Rail Transit Agency Activity To Implement Requirements
                          Under 49 CFR Part 659
                 [Mapped to provisions of proposed rule]
------------------------------------------------------------------------
      Rail transit agency activity          Labor hours        Cost
------------------------------------------------------------------------
Conduct accident investigations.........          30,000      $3,042,000
Prepare accident investigation reports..          19,168       1,329,745
Investigate unacceptable hazardous                14,030         973,306
 conditions.............................
Prepare unacceptable hazardous condition          12,032         834,698
 reports................................
Implement hazard management process.....          32,312       2,241,587
Prepare and submit corrective action              19,090       1,324,334
 plans..................................
Coordinate hazard management program              23,848       1,654,412
 activities with state oversight........
Maintain safety data....................           3,570         247,662
Make submissions to state oversight                2,618         181,619
 agency.................................
                                         -------------------------------
    Total Recurring Hours and Costs.....         156,668      11,829,364
                                         -------------------------------
    Total Non-recurring Hours and Costs.               0               0
------------------------------------------------------------------------


[[Page 14250]]

Limitations Under the Current Program

    Based on the assessment provided in the two tables above, 
collectively the States, the SSOAs and the RTAs expend approximately 
262,000 labor hours or $19.5 million in recurring costs to implement 49 
CFR part 659 requirements each year. While this level of effort helps 
make the transit industry among the safest modes of surface 
transportation, it has not been sufficient to prevent major accidents 
with multiple fatalities from occurring over the last decade. As 
discussed in the preamble to the NPRM, the rail transit industry 
remains vulnerable to catastrophic events.
    Since 2004, the NTSB has investigated (or preliminarily 
investigated) 19 major rail transit accidents, and has issued 25 safety 
recommendations to FTA, including six Urgent Recommendations. In 
conducting these investigations, the NTSB found a variety of probable 
causes for these accidents, among them: equipment malfunctions; 
equipment in poor or marginal condition, including equipment that can 
pose particular risks to safety, such as signal systems; lack of 
vehicle crashworthiness; employee fatigue and fitness for duty issues; 
and employee error, such as inattentiveness or failure to follow an 
RTA's operating procedure. The NTSB also identified the lack of a 
strong safety culture and a lack of adequate oversight both by the 
RTAs' SSOAs and FTA. Deficiencies in oversight--of the kind being 
addressed by this rulemaking--were specifically identified as a 
contributing factor for 5 of the 19 major accidents. As a result, the 
NTSB made improving the operational safety of the rail transit industry 
one of its Top Ten Most Wanted Items in 2014.
    FTA has also observed that while other modes of surface 
transportation, such as highway and commercial motor carrier, freight 
railroad and commercial trucking have achieved significant improvements 
in safety performance over the last decade, the public transportation 
industry's safety performance has not improved. Over the last decade, 
the rail transit industry actually has experienced increases in several 
key categories, including the number and severity of collisions, the 
number of worker fatalities and injuries, and the number and severity 
of passenger injuries. In this respect, the public transportation 
industry, and the nation's RTAs in particular, are outliers to the 
overall U.S. DOT modal safety experience.
    Perhaps coincidentally, FTA also notes that the current level of 
expenditure by the states and RTAs on safety oversight activities falls 
considerably below one percent of the roughly $4 billion that FTA 
awards to RTAs each year. A review of safety programs administered by 
other U.S. DOT modal administrations, such as the FRA, the Federal 
Highway Administration (FHWA), the Federal Motor Carrier Safety 
Administration (FMCSA), and the Federal Aviation Administration (FAA), 
demonstrates that at least one percent of the Federal investment is 
typically devoted to safety oversight activities and programs in most 
other related modes of transportation. Other transportation modes have 
determined that this level of investment in safety returns positive 
dividends in safety performance while also addressing tight budget 
margins in the transportation industry.
    Combined with a lack of resources devoted to safety oversight, FTA 
has observed that the operating, maintenance and service environments 
of the nation's RTAs continue to change. Rail transit ridership is at 
an all-time high, while rail transit equipment and infrastructure is in 
a deteriorated condition. The heavier service cycles required to meet 
rising demand in some of the nation's largest urbanized areas create 
challenges for aging infrastructure with potential safety implications. 
FTA's Transit Asset Management (TAM) NPRM, authorized at 49 U.S.C. 
5326, will address some of these challenges through the institution of 
formal asset management programs.
    In addition, this rule also implements the agency's decision to 
adopt the framework and principles of SMS. This decision was 
preliminarily communicated in a May 13, 2013, ``Dear Colleague'' letter 
to the public transportation industry. FTA's incorporation of SMS in 
this rule and in the subsequent Public Transportation Agency Safety 
Plan rule will allow SSOAs and RTAs to address the nexus between safety 
and state of good repair more effectively.

MAP-21 Requirements To Address Known Gaps in Oversight

    MAP-21 creates a new regulatory role for FTA and the states that 
responds to known gaps in oversight and safety performance. For 
example, to address noted FTA and NTSB concerns regarding conflicts of 
interest and the ability of SSO agencies to act independently in the 
interest of public safety, 49 U.S.C. 5329(e)(4)(i) specifies that each 
SSO agency must have financial and legal independence from each of the 
rail fixed guideway public transportation systems in its jurisdiction.
    To address the need for an enhanced safety regulatory program, 49 
U.S.C. 5329(e)(2)(A-B) directs states to assume oversight 
responsibility for RTAs in engineering and construction, as well as in 
revenue service. This requirement increases the number of states 
subject to the SSO regulations from 28 to 30, and increases the number 
of RTAs from 48 to 60 nationwide.

MAP-21 SSO Grant Program--Costs to States

    The statutory changes to the SSO program include a new grant 
program to assist with the costs of compliance. Federal financial 
assistance is now available to states to help them develop and carry 
out their SSO programs, and may be used, specifically, for up to eighty 
percent of both the operational and administrative expenses of SSOAs, 
including the expenses of employee training.
    On March 10, 2014, FTA announced its apportionment of $21,945,771 
in funding to eligible States for their SSO activities for Federal 
Fiscal Year 2013, and $22,293,250 for Federal Fiscal Year 2014. 46 FR 
13380. For purposes of cost-benefit analysis, this funding is a 
transfer and is excluded from the calculations.
    The table below compares and contrasts the specific activities 
performed, the labor hours and the total costs expended under the 
existing 49 CFR part 659 requirements (as discussed above) with FTA's 
proposal for the program authorized at 49 U.S.C. 5329(e) and required 
by today's final rule. Readers should note that the 49 CFR part 659 
labor hours and costs reflect 28 SSOAs and 48 RTAs, while the labor 
hours and costs under today's rule reflect 30 SSOAs and 60 RTAs. As 
discussed above, new definitions in 49 U.S.C. 5329 expand state safety 
oversight requirements to include RTAs in construction and engineering 
phases of development.
    Labor estimates for the activities in this rule are derived based 
on the hours required to complete them as reported by States already 
implementing the specific activities; the estimates and general 
discussion provided in the Senate Conference Report accompanying the 
Public Transportation Safety Act of 2010 (S. 3638, 111th Congress); and 
the experience of FTA's legal, policy, grant making and safety team.
    This table shows a significant increase in the level of oversight 
activity performed to implement today's rule. Through the SSO grant 
program, this

[[Page 14251]]

additional oversight activity will be funded, thus resulting in little 
or no additional cost to the states.

                           Comparison Table--Costs to State Safety Oversight Agencies
----------------------------------------------------------------------------------------------------------------
                                                   Current labor                  Proposed labor
         State oversight agency activity               hours       Current cost        hours       Proposed cost
----------------------------------------------------------------------------------------------------------------
Sec.   674.11 Develop State Safety Oversight
 Program:
     Explicit Acknowledgement of State                 0              $0           1,200         $83,248
     Responsibility to Oversee Safety of Rail
     Transit Agencies in Engineering,
     Construction and Operations *..............
     Demonstrate Authority to Adopt and                0               0           1,200          83,248
     Enforce State and Federal Regulations *....
     Demonstrate Adequate/Appropriate                  0               0           3,000         208,120
     Staffing Level *...........................
     Demonstrate Qualification and                     0               0           3,000         208,120
     Certification of Staff *...................
     Demonstrate by Law Prohibition                    0               0             600          41,624
     against Receiving Funding from Rail Transit
     Agency *...................................
Sec.   674.13 Designation of oversight agency:
     Legal and Financial Independence                  0               0           2,400         166,496
     Procedures and Disclosures *...............
     Annual Updates and Legal and                      0               0             600          41,624
     Financial Independence Disclosures.........
     Documentation of No Provision of                  0               0              60           4,162
     Transit Service............................
     Documentation of No Employment for                0               0              60           4,162
     Personnel Administering Rail Transit
     Programs...................................
     Establish and Document Authority to               0               0          30,000       2,081,196
     Review, Approve, Oversee, and Enforce
     Agency Safety Plan *.......................
     Establish and Document                            0               0          30,000       2,081,196
     Investigative and Enforcement Authority *..
Sec.   674.15 Designation of oversight agency                  0               0           3,000         208,120
 for multi-state system.........................
Sec.   674.17 Use of Federal financial
 assistance:
     Identifying and Providing                         0               0           6,000         416,239
     Appropriate Match for Grant Program *......
     SSO Grant Management and Reporting                0               0           3,000         208,120
     Activities.................................
Sec.   674.19 Certification of a State Safety
 Oversight Program:
     Certification Pre-Submittal                       0               0           2,400         166,496
     Documentation to FTA.......................
     Work Plan and Quarterly Updates to                0               0           3,000         208,120
     FTA........................................
     Initial Certification Documentation           2,860         198,407             300          20,812
     Final Certification Documentation..               0               0             600          41,624
     Maintenance of Annual Certification               0               0             600          41,624
Sec.   674.21 Withholding of Federal financial                 0               0               0               0
 assistance for noncompliance...................
Sec.   674.23 Confidentiality of information:
     Develop and adopt procedures/                     0               0           3,000         208,120
     regulation to withhold an investigation
     report from being admitted as evidence or
     used in a civil action *...................
Sec.   674.25 Role of the State safety oversight
 agency:
     Establish minimum standards for the               0               0          30,000       2,081,196
     safety of rail transit agencies *..........
     Update minimum standards as needed                0               0           6,000         416,239
     or required................................
     Review and approve Agency Safety              3,840         266,393           9,600         665,983
     Plan (Sec.   674.29 Public Transportation
     Agency Safety Plans: general requirements).
     Review and Approve Supporting and             3,072         213,114           9,600         665,983
     Referenced Procedures......................
     Review and Approve Annual Updates             3,072         213,114           4,800         332,991
     to Agency Safety Plan and Supporting and/or
     Referenced Procedures......................
     Oversee the Rail Transit Agency's             8,448         586,065          60,000       4,162,392
     execution of its Public Transportation
     Agency Safety Plan.........................
     Enforce the execution of a Public                 0               0           1,200          83,248
     Transportation Agency Safety Plan, through
     an order of a corrective action plan or any
     other means, as necessary or appropriate...
     Ensure that a Public Transportation               0               0           1,200          83,248
     Agency Safety Plan meets the requirements
     for Public Transportation Agency Safety
     Plans at 49 U.S.C. 5329(d) and the
     regulations that are or may be codified at
     49 CFR Part 673............................
     Investigate any hazard or risk that          19,200       1,331,965          60,000       4,162,392
     threatens the safety of a Rail Transit
     Agency.....................................
     Investigate any allegation of                     0               0               0               0
     noncompliance with a Public Transportation
     Agency Safety Plan.........................
     Exert primary responsibility to                   0               0               0               0
     investigate each Rail Transit Agency
     accident...................................
     Enter into agreements with                        0               0           6,000         416,239
     contractors................................
     Comply with the requirements of the           3,840         266,393          24,000       1,664,957
     Public Transportation Agency Safety
     Certification Training Program.............
Sec.   674.27 State safety program standards:
     Develop and adopt program standard            1,400          97,122           6,000         416,239
     *..........................................
     Develop and adopt program                     1,400          97,122           6,000         416,239
     procedures *...............................
     Develop and adopt Safety Management               0               0           6,000         416,239
     Systems oversight principles and oversight
     methods *..................................
     Review and update program standard            2,912         202,015             600          41,624
     and procedures.............................
Sec.   674.31 Triennial audits: General
 requirements:
     Conduct Three Year Audit...........           9,216         639,343          36,000       2,497,435
     Document Results and Findings......          13,440         932,376          12,000         832,478

[[Page 14252]]

 
Sec.   674.33 Notifications: Accidents and other
 incidents:
     Receive and track notification of                 0               0           1,000          69,373
     accidents..................................
     Report to FTA......................               0               0           1,000          69,373
Sec.   674.35 Investigations:
     Prepare Accident Investigation                5,376         545,126          16,743       1,697,704
     Report.....................................
     Review, Approve and/or Adopt                  6,144         623,002           7,680         778,752
     Accident Investigation Reports.............
Sec.   674.37 Corrective action plans...........          15,360       1,065,572          18,000       1,248,718
Sec.   674.39 State Safety Oversight Agency                3,528         244,749           2,400         166,496
 annual reporting to FTA........................
Sec.   674.41 Conflicts of interest.............               0               0             600          41,624
Travel, where not included with other items.....           5,376         372,950           1,200          83,248
                                                 ---------------------------------------------------------------
        Total Recurring Hours and Costs.........         105,684       7,700,586         294,443      21,208,607
                                                 ---------------------------------------------------------------
        Total Non-recurring Hours and Costs.....           2,800         194,245         127,200       8,824,271
----------------------------------------------------------------------------------------------------------------
 * Non-recurring cost.

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

    As discussed above, this NPRM implements the framework and 
principles of SMS. The costs included in the table below reflect FTA's 
estimation regarding the likely requirements of SMS adoption by the 
RTAs in critical areas overseen by the SSO program--investigations, 
inspections, and reviews; safety data acquisition and analysis; and 
safety performance monitoring. The cost estimates in the NPRM included 
potential costs associated with the Public Transportation Agency Safety 
Plan required under 49 U.S.C. 5329(d). FTA is deleting those costs from 
this rulemaking and instead will account for them in the Public 
Transportation Agency Safety Plan rulemaking.
    This table depicts significant increases for the labor hours in 
several activities currently performed to implement 49 CFR part 659, 
indicating enhanced activity in the specific area based on the more 
rigorous MAP-21 SSO program, as well as the requirements of additional 
collaboration and coordination with a significantly expanded SSO 
function in the state. Safety performance monitoring will become a 
critical component of the SSO program and the estimates above include 
labor hours for developing and adopting SMS principles and conducting 
oversight.
    The reader should note that for the proposed MAP-21 columns, this 
table includes 60 RTAs, in contrast to the 48 RTAs covered by the 
current 49 CFR part 659 requirements. Even if no other changes were 
addressed, increasing the number of covered RTAs by 25 percent would 
raise the total cost of the SSO program considerably.

                                Comparison Table--Costs to Rail Transit Agencies
----------------------------------------------------------------------------------------------------------------
                                Current labor
 Rail transit agency activity       hours       Current cost          Proposed labor hours         Proposed cost
----------------------------------------------------------------------------------------------------------------
Conduct accident                       30,000      $3,042,000  38,000...........................      $3,853,200
 investigations.
Prepare accident                       19,168       1,329,745  24,000...........................       1,664,957
 investigation reports.
Investigate unacceptable               14,030         973,306  60,000...........................       4,162,392
 hazardous conditions.
Prepare unacceptable                   12,032         834,698  Included in above................               0
 hazardous condition reports.
Implement hazard management            32,312       2,241,587  60,000...........................       4,162,392
 process.
Prepare and submit corrective          19,090       1,324,334  24,000...........................       1,664,957
 action plans.
Coordinate hazard management           23,848       1,654,412  30,000...........................       2,081,196
 program activities with
 state oversight.
Maintain safety data.........           3,570         247,662  4,000............................         277,493
Make submissions to state               2,618         181,619  9600.............................         665,983
 oversight agency.
                              ----------------------------------------------------------------------------------
    Total Recurring Hours and         156,668      11,829,364  249,600..........................      18,532,569
     Costs.
                              ----------------------------------------------------------------------------------
    Total Non-recurring Hours               0               0  0................................               0
     and Costs.
----------------------------------------------------------------------------------------------------------------
\*\ Non-recurring cost.

Total Estimated Impact of Final Rule

    Based on the tables provided above, FTA estimates that minimum 
implementation of this rule, as well as potential costs associated with 
the Public Transportation Agency Safety Plan for RTAs, will require, 
for Year 1 of the new program, a total of approximately $30.0 million 
for the 30 states to implement, and a total of roughly $26 million for 
the 60 RTAs to implement. Expenditures in subsequent years consist only 
of recurring costs and thus will be slightly lower, at roughly $21.2 
million for the states and $18.5 million for the RTAs.
    Compared to current spending levels of SSO activities, the proposed 
rule would require an incremental $13.5 million per year on the part of 
SSOAs and $6.7 million for RTAs, compared to current spending levels. 
This represents a combined increase of roughly $20.0 million per year 
over current levels. Incremental costs in Year 1 would be somewhat 
higher, at roughly $29 million, due to some one-time costs under the 
proposed rule.

[[Page 14253]]



----------------------------------------------------------------------------------------------------------------
                                            Existing regulation                     Proposed regulation
                                 -------------------------------------------------------------------------------
                                                         Non-recurring                           Non-recurring
                                    Recurring costs          costs          Recurring costs          costs
----------------------------------------------------------------------------------------------------------------
SSOAs...........................  $7,700,586........  $194,245..........  $21,208,607.......  $8,824,271.
Rail Transit Agencies...........  $11,829,364.......  $0................  $18,532,569.......  $0.
FTA Costs:
                                 -------------------------------------------------------------------------------
    Total, Year 1...............  $19,529,951 (Recurring Costs only, Non-
                                      recurring Costs Considered Sunk)
                                      $48,565,448 (Recurring and Non-
                                             Recurring Costs).
                                 -------------------------------------------------------------------------------
    Total, Future Years.........    $19,529,951 (Recurring Costs Only)
                                    $39,741,177 (Recurring Costs Only).
                                 -------------------------------------------------------------------------------
    Overall Difference, Year 1:                                    $29,035,497.
                                 -------------------------------------------------------------------------------
    Overall Difference, Future                                     $20,211,226.
     Years.
----------------------------------------------------------------------------------------------------------------

    In terms of the actual costs to the States, FTA is providing 
approximately $22 million in grant funds each year to the States to 
offset this rule's annual costs. This funding is treated as a transfer 
for the purposes of cost-benefit analysis. In addition, since the 
states already expend an estimated $7.7 million to implement 49 CFR 
part 659 requirements, most of the existing expenditure will cover the 
20 percent local match required in FTA's grant program. FTA therefore 
finds that that the states will bear little new net costs as a result 
of this rule. With regard to costs to the RTAs, FTA currently provides 
funding that RTAs may use for these purposes, but, since there is no 
safety-focused grant program similar to that for SSOs and each RTA 
receives and uses its formula funds differently, FTA is unable to 
provide an estimate of how much FTA funding will be used here.
    FTA believes that a significant portion of the incremental expenses 
may comprise activities that are already performed--and management 
information systems that are already maintained--by rail transit 
departments other than the safety department, such as operations, 
maintenance and performance monitoring. For instance, FTA reviews at 
RTAs and SSO audits confirm that all RTAs use and maintain formal 
systems to track rules checks performed on operators; inspections and 
preventative/corrective maintenance activities for vehicles and 
infrastructure; reports regarding the occurrence and cause of events 
resulting in service delays lasting longer than a prescribed period of 
minutes; and unusual occurrences reported during revenue service. 
Therefore, the cost estimate calculated above may overstate the true 
incremental costs of the changes to the SSO program, but is 
nevertheless used here to provide a conservative estimate.
    Doing more to analyze and assess this information from a safety 
perspective is at the core of SMS, and FTA anticipates that this level 
of active review of operations and maintenance data will ultimately 
result in cost savings for many RTAs, as has been the case in the 
aviation and trucking industries. Initially, however, FTA anticipates 
that RTAs will be required to spend an additional $6.7 million per year 
(after year 1) to implement SMS, which equates to approximately 
$112,000 per RTA. Larger RTAs will be required to assume a larger 
portion of these costs, while smaller RTAs likely will spend 
considerably less.
    The safety benefits of the proposed changes are difficult to 
estimate quantitatively because they involve numerous small but 
important changes to state and agency safety practices, and because the 
overall rate of serious injuries on RTAs is already quite low. These 
changes to the SSO regulations address longstanding deficiencies in the 
current SSO structure and improve the ability of SSOAs to carry out 
their mission of improving safety on fixed guideway transit systems. In 
addition, NTSB has advocated for many of these changes based on their 
investigation of rail transit accidents, their analysis of the current 
SSO structure, and their expertise in ensuring safe operation across 
all modes of transportation. FTA likewise believes that the revised SSO 
structure and associated activities will enhance the safety of rail 
fixed guideway transit systems, increasing accountability and 
decreasing transit-related incidents, injuries, and fatalities.
    That said, although this rule would not on its own implement SMS, 
it does create the organizational structure needed for SMS to be 
successful. Thus, FTA has considered how other transportation modes 
that are in the process of implementing SMS or similar systematic 
approaches to safety have estimated the benefits of their programs in 
reducing incidents and adverse outcomes. For example, although no two 
programs are identical, FRA in both its Final Rule implementing its 
System Safety Program (SSP) and NPRM on its Risk Reduction Program 
(RRP) provided evidence that both programs could lead to meaningful 
reductions in serious crashes and conducted breakeven analyses that 
found that approximately a 0.01 reduction in the incidents and 
accidents under consideration would lead to a cost-neutral SSP rule and 
an approximately 0.02 reduction (rounding up) for the RRP rule.\2\ 
Enhancements brought about by SMS also have supported transportation 
and oversight agencies in mitigating the impacts of those events that 
do occur.
---------------------------------------------------------------------------

    \2\ See FRA's SSP NPRM (77 FR 55371, Sept. 7, 2012) and RRP NPRM 
(80 FR 10949, Feb. 27, 2015).
---------------------------------------------------------------------------

    FTA has, therefore, considered what percentage of potential safety 
benefits this rule would need to achieve in order to ``break even'' 
with the costs. FTA notes that this break-even analysis is not intended 
to be the full analysis of the potential benefits of SMS for transit 
safety, which will be conducted in FTA's subsequent safety rulemakings; 
rather, it is intended to provide some quantified estimate of the 
potential benefits of the changes to the SSO program in today's rule. 
Further, FTA notes that this analysis may understate the potential 
benefits because FTA did not have information on some non-injury 
related costs associated with many incidents, particularly regarding 
property damage and travel delays.
    First, over the last six years, as reported by the SSO agencies in 
their annual reports to FTA, the rail transit industry has averaged 
approximately 975 safety events meeting 49 CFR part 659 accident 
reporting thresholds per year (i.e., what must be reported by an RTA to 
an SSOA). In an average year, these events include 135 fatalities (of 
which approximately 85 per year involve suicides and trespassers) and 
645 injuries requiring hospitalization away from the scene. Using U.S. 
DOT guidance regarding the valuation of

[[Page 14254]]

fatalities and injuries,\3\ these incidents have an economic value of 
$1.906 billion per year. Rail transit incidents also entail costs 
related to vehicle and infrastructure damage, delays and disruptions to 
commuters, and emergency response costs. For example, the May 2008 
collision between two light-rail vehicles in Newton, Massachusetts, 
caused $8.6 million in property damage and caused significant service 
delays during the evening rush hour. Some incident costs, such as 
passenger delays, could not be comprehensively quantified due to data 
limitations, despite FTA's request for data in the NPRM.
---------------------------------------------------------------------------

    \3\ Kathryn Thomson and Carlos Monje ``Guidance on Treatment of 
the Economic Value of a Statistical Life in U.S. Department of 
Transportation Analyses'' June 25, 2015. Office of the Secretary of 
Transportation, https://www.transportation.gov/office-policy/transportation-policy/guidance-treatment-economic-value-statistical-life.
---------------------------------------------------------------------------

    As an illustrative calculation, based on the above analysis, in 
order for the benefits of this rule to break even with the costs to 
both SSOs and RTAs, this rule would only need to prevent 1.1 percent of 
these accidents per year, which does not include potentially 
significant unquantified costs related to property damage and 
disruption. FTA believes that this level of accident reduction will 
likely be attainable based on the enhancements to the SSO program and 
the associated improvements in RTA safety practices that lend 
themselves to greater awareness of risk and hazards.
    FTA also performed a narrower analysis of the potential safety 
benefits of the proposed regulation by reviewing the rail transit 
incidents specifically identified by the NTSB as related to inadequate 
safety oversight programs. Of the 19 major rail transit accidents the 
NTSB has investigated (or preliminarily investigated) since 2004, five 
had probable causes that included inadequate safety oversight on the 
part of the RTA or FTA. These incidents and the corresponding damages 
and costs are detailed below.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Cost of
                  Date                                Agency                Fatalities    Minor injuries     Moderate         Severe         property
                                                                                                             injuries        injuries         damage
--------------------------------------------------------------------------------------------------------------------------------------------------------
2/3/2004...............................  Chicago Transit Authority (CTA)               0              42               0               0         $62,000
7/11/2006..............................  Chicago Transit Authority (CTA)               0             125              21               6       1,004,900
6/22/2009..............................  Washington Metropolitan Area                  9              38              12               2      12,000,000
                                          Transit Authority (WMATA).
1/26/2010..............................  Washington Metropolitan Area                  2               0               0               0               0
                                          Transit Authority (WMATA).
7/20/2010..............................  Miami-Dade Transit (MDT).......               0              16               0               0         406,691
                                        ----------------------------------------------------------------------------------------------------------------
    Total..............................  ...............................              11             221              33               8      13,500,000
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Again using U.S. DOT guidance regarding the valuation of fatalities 
and injuries,\4\ FTA used a value of $9.4 million per fatality. NTSB's 
qualitative injury levels were converted to the Abbreviated Injury 
Scale and monetized as follows: Minor is assumed to be AIS-1 ($28,200), 
Moderate is assumed to be AIS-2 ($441,800), and Severe is 
(conservatively) assumed to be AIS-3 ($987,000).
---------------------------------------------------------------------------

    \4\ Id.
---------------------------------------------------------------------------

    As such, the total quantifiable cost for the five incidents is 
approximately $145.6 million (fatalities: $103.4 million, minor 
injuries: $6.2 million, moderate injuries $14.6 million, severe 
injuries: $7.9 million, property damage: $13.5 million) or 
approximately $14.6 million per year over a ten year period. The 
average cost per incident was $29.1 million, plus unquantified losses 
from travel delays and emergency response. The most costly incident, 
the 2009 WMATA crash, had total costs of over $100 million, including 
$93 million in monetized injuries and fatalities and $12 million in 
property damage. While improved safety oversight cannot necessarily 
prevent all rail transit accidents, preventing even a single incident 
on the scale of the 2009 WMATA Red Line crash would yield societal 
benefits that exceed the incremental costs of compliance across 
multiple years of implementation, especially when considering FTA's 
funding of this program. Benefits would also accrue from the prevention 
of multiple, less severe incidents, including those where only property 
damage or travel delays occur.
    When considering the incremental costs to SSOs and RTAs, this rule 
would need to prevent less than 0.69 accidents per year significant 
enough to be investigated by NTSB and identified as being caused by 
inadequate safety oversight in order to break even, even in the absence 
of any other impacts.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354; 
5 U.S.C. 601-612), FTA has evaluated the likely effects of the 
proposals set forth in this rulemaking on small entities, and has 
determined that this rule will not have a significant economic impact 
on a substantial number of small entities. The recipients of the SSO 
grant funds are eligible states, and the entities that will carry out 
the oversight of rail fixed guideway public transportation--the SSOAs--
are state agencies. For this reason, FTA certifies that this rule will 
not have a significant economic effect on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995

    This rulemaking will not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 109 Stat. 48). The 
Federal share for the grants made under 49 U.S.C. 5329(e)(6) is eighty 
percent. This rule will not result in the expenditure by state, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$155 million or more in any one year (2 U.S.C. 1532).

Executive Order 13132 (Federalism Assessment)

    This rulemaking has been analyzed in accordance with the principles 
and criteria established by Executive Order 13132 (Aug. 4, 1999), and 
FTA has determined that it does not have sufficient Federalism 
implications to warrant the preparation of a Federalism assessment. FTA 
also determined that this action would not preempt any state law or 
state regulation or affect the states' abilities to discharge 
traditional State governmental functions. Moreover, consistent with 
Executive Order 13132, FTA has examined the direct compliance costs of 
the rule on state and local governments and determined that the 
collection and analysis of the

[[Page 14255]]

data is eligible for Federal funding as part of the SSO program costs.

Executive Order 12372 (Intergovernmental Review)

    The regulations effectuating Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities were 
applied during this rulemaking.

Paperwork Reduction Act

    In compliance with the Paperwork Reduction Act of 1995 (``PRA'') 
(44 U.S.C. 3501 et seq.), and the OMB regulation at 5 CFR 1320.8(d), 
FTA is seeking approval from OMB for the Information Collection Request 
abstracted below. FTA acknowledges that this rule requires the 
collection of information to facilitate State safety oversight of rail 
fixed guideway public transportation systems, including, specifically, 
annual status reporting on the safety of rail fixed guideway public 
transportation systems, triennial auditing of RTAs' compliance with 
their public transportation agency safety plans, requests for FTA 
certification of SSO programs, and completion of Public Transportation 
Safety Certification Training programs--all of which are mandated by 49 
U.S.C. 5329(e).
    FTA sought comment on whether the information collected would have 
practical utility; whether its estimation of the burden of the proposed 
information collection was accurate; whether the burden could have been 
minimized through the use of automated collection techniques or other 
forms of information technology; and for ways in which the quality, 
utility, and clarity of the information could have been enhanced.
    Readers should note that the information collection is specific to 
each state and its SSOA, to facilitate and record the SSOA's exercise 
of its oversight responsibilities. The paperwork burden for each state 
and its SSOA is proportionate to the number of rail fixed guideway 
public transportation systems within that state, the modal types of 
those systems (e.g., rapid rail, light rail, or streetcar), and the 
size and complexity of those RTAs. Moreover, the labor-burden of the 
reporting requirements such as annual reporting and triennial auditing 
are largely borne by the SSOA staff that will be financed, in part, by 
the Federal financial assistance under 49 U.S.C. 5329(e)(6).
    Also, readers should note that FTA already collects information 
from states and SSOAs in accordance with the requirements of 49 U.S.C. 
5330 and the regulations at 49 CFR part 659. Please see FTA's recent 
Notice of Request for Revisions of an Information Collection, submitted 
to OMB, published at 78 FR 51810-1 (August 21, 2013), which describes 
the SSOAs' development of program standards and their review and 
approval of System Safety Program Plans and System Security Plans for 
rail fixed guideway public transportation systems; the triennial, on-
site reviews that SSOAs conduct of RTAs; and various other reporting, 
such as SSOAs' review and approval of accident reports and corrective 
action plans, and submittal of annual reports of safety and security 
oversight activities and certifications of compliance with 49 U.S.C. 
5330. Most if not all of the information collection from States and 
SSOAs under section 5330 and 49 CFR part 659 is being carried over into 
the new SSO program and the specific requirements proposed in today's 
rulemaking.
    Heretofore, there has been no Federal financial assistance 
available to states and their SSOAs to defray the costs of information 
collection under 49 U.S.C. 5330 and the longstanding regulations at 49 
CFR part 659. The costs of information collection associated with 
today's rule are eligible for reimbursement under the SSO grants 
authorized by 49 U.S.C. 5329(e)(6).
    Type of Review: OMB Clearance. Updated information collection 
request.
    Respondents: Currently there are 30 states with 60 rail fixed 
guideway public transportation systems. Twenty-eight of these states 
have already established an SSO program and designated an SSOA; two 
more have indicated their intention to do so in the near future. The 
PRA estimate is based on a total of 30 states establishing SSOAs and 
seeking Federal financial assistance under 49 U.S.C. 5329(e)(6), per 
year.
    Frequency: Information will be collected at least once per year.
    Estimated Total Annual Burden Hours: 305,130, estimated as follows: 
Annually, each SSOA would devote approximately 1,980.5 hours to 
information collection activities for each of the RTAs in the state's 
jurisdiction. Combined, the SSOAs would devote approximately 118,860 
hours on those information collection activities that year. The local 
governments affected by 49 U.S.C. 5329(e) and today's rulemaking, 
including the 60 rail fixed guideway public transportation systems, 
would spend an estimated annual total of 186,300 hours on information 
collection activities, or approximately 3,105 hours each. Also, the 
states and SSOAs would spend approximately 50 hours each in the 
preparation of applications for Federal financial assistance for their 
SSO programs, for a combined estimate of 1,500 hours per year.

National Environmental Policy Act

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

Executive Order 12630 (Taking of Private Property)

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

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

    Executive Order 12898 (Feb. 8, 1994) directs every Federal agency 
to make environmental justice part of its mission by identifying and 
addressing the effects of all programs, policies, and activities on 
minority populations and low-income populations. The U.S. DOT 
environmental justice initiatives accomplish this goal by involving the 
potentially affected public in developing transportation projects that 
fit harmoniously within their communities without compromising safety 
or mobility. Additionally, FTA has issued a program circular addressing 
environmental justice in public transportation, C 4703.1, Environmental 
Justice Policy Guidance for Federal Transit Administration Recipients. 
This circular provides a framework for FTA grantees as they integrate 
principles of environmental justice into their transit decision-making 
processes. The circular includes recommendations for state departments 
of transportation, metropolitan planning organizations, and public 
transportation systems on (1) how to fully engage

[[Page 14256]]

environmental justice populations in the transportation decision-making 
process; (2) how to determine whether environmental justice populations 
would be subjected to disproportionately high and adverse human health 
or environmental effects of a public transportation project, policy, or 
activity; and (3) how to avoid, minimize, or mitigate these effects.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

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

Executive Order 13175 (Tribal Consultation)

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

Executive Order 13211 (Energy Effects)

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

Privacy Act

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

Statutory/Legal Authority for This Rulemaking

    This rulemaking is issued under the authority of section 20021(a) 
of the Moving Ahead for Progress in the 21st Century Act (MAP-21), now 
codified at 49 U.S.C. 5329(e)(10)(C), which requires the Secretary of 
Transportation to prescribe regulations for state safety oversight of 
rail fixed guideway public transportation systems. Also, pursuant to 49 
U.S.C. 5329(f)(7), the Secretary is authorized to issue regulations to 
carry out the general provisions of a Public Transportation Safety 
Program.

Regulation Identification Number

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

List of Subjects in 49 CFR Part 674

    Grant programs--Transportation, Mass transportation, Reporting and 
recordkeeping requirements, Safety.

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

0
For the reasons set forth in the preamble, and under the authority of 
49 U.S.C. 5329(e), 5329(f), and the delegations of authority at 49 CFR 
1.91, FTA hereby amends Chapter VI of Title 49, Code of Federal 
Regulations, by adding part 674 to read as follows:

PART 674--STATE SAFETY OVERSIGHT

Subpart A--General Provisions
Sec.
674.1 Purpose.
674.3 Applicability.
674.5 Policy.
674.7 Definitions.
674.9 Transition from previous requirements for State safety 
oversight.
Subpart B--Role of the State
674.11 State Safety Oversight Program.
674.13 Designation of oversight agency.
674.15 Designation of oversight agency for multi-state system.
674.17 Use of Federal financial assistance.
674.19 Certification of a State Safety Oversight Program.
674.21 Withholding of Federal financial assistance for 
noncompliance.
674.23 Confidentiality of information.
Subpart C--State Safety Oversight Agencies
674.25 Role of the State safety oversight agency.
674.27 State safety oversight program standards.
674.29 Public Transportation Agency Safety Plans: general 
requirements.
674.31 Triennial audits: general requirements.
674.33 Notifications of accidents.
674.35 Investigations.
674.37 Corrective action plans.
674.39 State Safety Oversight Agency annual reporting to FTA.
674.41 Conflicts of interest.

Appendix to Part 674--Notification and reporting of accidents, 
incidents, and occurrences.

    Authority:  49 U.S.C. 5329(e) and (f), as amended by section 
20021(a) of the Moving Ahead for Progress in the 21st Century Act 
(MAP-21) (Pub. L. 112-141) and the delegations of authority at 49 
CFR 1.91.

Subpart A--General Provisions


Sec.  674.1  Purpose.

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


Sec.  674.3  Applicability.

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


Sec.  674.5  Policy.

    (a) In accordance with 49 U.S.C. 5329(e), a State that has a rail 
fixed guideway public transportation system within the State has 
primary responsibility for overseeing the safety of that rail fixed 
guideway public transportation system. A State safety oversight agency 
must have sufficient authority, resources, and qualified personnel to 
oversee the number, size, and complexity of rail fixed guideway public 
transportation systems that operate within a State.
    (b) FTA will make Federal financial assistance available to help an 
eligible State develop or carry out its State safety oversight program. 
Also, FTA will certify whether a State safety oversight program meets 
the requirements of 49 U.S.C. 5329(e) and is adequate to promote the 
purposes of the public transportation safety programs codified at 49 
U.S.C. 5329.

[[Page 14257]]

Sec.  674.7  Definitions.

    As used in this part:
    Accident means an Event that involves any of the following: A loss 
of life; a report of a serious injury to a person; a collision 
involving a rail transit vehicle; a runaway train; an evacuation for 
life safety reasons; or any derailment of a rail transit vehicle, at 
any location, at any time, whatever the cause. An accident must be 
reported in accordance with the thresholds for notification and 
reporting set forth in Appendix A to this part.
    Accountable Executive means a single, identifiable individual who 
has ultimate responsibility for carrying out the Public Transportation 
Agency Safety Plan of a public transportation agency; responsibility 
for carrying out the agency's Transit Asset Management Plan; and 
control or direction over the human and capital resources needed to 
develop and maintain both the agency's Public Transportation Agency 
Safety Plan, in accordance with 49 U.S.C. 5329(d), and the agency's 
Transit Asset Management Plan in accordance with 49 U.S.C. 5326.
    Administrator means the Federal Transit Administrator or the 
Administrator's designee.
    Contractor means an entity that performs tasks on behalf of FTA, a 
State Safety Oversight Agency, or a Rail Transit Agency, through 
contract or other agreement.
    Corrective action plan means a plan developed by a Rail Transit 
Agency that describes the actions the Rail Transit Agency will take to 
minimize, control, correct, or eliminate risks and hazards, and the 
schedule for taking those actions. Either a State Safety Oversight 
Agency or FTA may require a Rail Transit Agency to develop and carry 
out a corrective action plan.
    Event means an Accident, Incident or Occurrence.
    FRA means the Federal Railroad Administration, an agency within the 
United States Department of Transportation.
    FTA means the Federal Transit Administration, an agency within the 
United States Department of Transportation.
    Hazard means any real or potential condition that can cause injury, 
illness, or death; damage to or loss of the facilities, equipment, 
rolling stock, or infrastructure of a rail fixed guideway public 
transportation system; or damage to the environment.
    Incident means an event that involves any of the following: A 
personal injury that is not a serious injury; one or more injuries 
requiring medical transport; or damage to facilities, equipment, 
rolling stock, or infrastructure that disrupts the operations of a rail 
transit agency. An incident must be reported to FTA's National Transit 
Database in accordance with the thresholds for reporting set forth in 
Appendix A to this part. If a rail transit agency or State Safety 
Oversight Agency later determines that an Incident meets the definition 
of Accident in this section, that event must be reported to the SSOA in 
accordance with the thresholds for notification and reporting set forth 
in Appendix A to this part.
    Investigation means the process of determining the causal and 
contributing factors of an accident, incident, or hazard, for the 
purpose of preventing recurrence and mitigating risk.
    National Public Transportation Safety Plan means the plan to 
improve the safety of all public transportation systems that receive 
Federal financial assistance under 49 U.S.C. Chapter 53.
    NTSB means the National Transportation Safety Board, an independent 
Federal agency.
    Occurrence means an Event without any personal injury in which any 
damage to facilities, equipment, rolling stock, or infrastructure does 
not disrupt the operations of a rail transit agency.
    Person means a passenger, employee, contractor, pedestrian, 
trespasser, or any individual on the property of a rail fixed guideway 
public transportation system.
    Public Transportation Agency Safety Plan (PTASP) means the 
comprehensive agency safety plan for a transit agency, including a Rail 
Transit Agency, that is required by 49 U.S.C. 5329(d) and based on a 
Safety Management System. Until one year after the effective date of 
FTA's PTASP final rule, a System Safety Program Plan (SSPP) developed 
pursuant to 49 CFR part 659 will serve as the rail transit agency's 
safety plan.
    Public Transportation Safety Certification Training Program means 
either the certification training program for Federal and State 
employees, or other designated personnel, who conduct safety audits and 
examinations of public transportation systems, and employees of public 
transportation agencies directly responsible for safety oversight, 
established through interim provisions in accordance with 49 U.S.C. 
5329(c)(2), or the program authorized by 49 U.S.C. 5329(c)(1).
    Rail fixed guideway public transportation system means any fixed 
guideway system that uses rail, is operated for public transportation, 
is within the jurisdiction of a State, and is not subject to the 
jurisdiction of the Federal Railroad Administration, or any such system 
in engineering or construction. Rail fixed guideway public 
transportation systems include but are not limited to rapid rail, heavy 
rail, light rail, monorail, trolley, inclined plane, funicular, and 
automated guideway.
    Rail Transit Agency (RTA) means any entity that provides services 
on a rail fixed guideway public transportation system.
    Risk means the composite of predicted severity and likelihood of 
the potential effect of a hazard.
    Risk mitigation means a method or methods to eliminate or reduce 
the effects of hazards.
    Safety risk management means a process within a Rail Transit 
Agency's Safety Plan for identifying hazards and analyzing, assessing, 
and mitigating safety risk.
    Serious injury means any injury which:
    (1) Requires hospitalization for more than 48 hours, commencing 
within 7 days from the date of the injury was received;
    (2) Results in a fracture of any bone (except simple fractures of 
fingers, toes, or nose);
    (3) Causes severe hemorrhages, nerve, muscle, or tendon damage;
    (4) Involves any internal organ; or
    (5) Involves second- or third-degree burns, or any burns affecting 
more than 5 percent of the body surface.
    State means a State of the United States, the District of Columbia, 
Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and 
the Virgin Islands.
    State Safety Oversight Agency (SSOA) means an agency established by 
a State that meets the requirements and performs the functions 
specified by 49 U.S.C. 5329(e) and the regulations set forth in this 
part.
    Vehicle means any rolling stock used on a rail fixed guideway 
public transportation system, including but not limited to passenger 
and maintenance vehicles.


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

    (a) Pursuant to section 20030(e) of the Moving Ahead for Progress 
in the 21st Century Act (Pub. L. 112-141; July 6, 2012) (``MAP-21''), 
the statute now codified at 49 U.S.C. 5330, titled ``State safety 
oversight,'' will be repealed three years after the effective date of 
the regulations set forth in this part.
    (b) No later than three years after the effective date of the 
regulations set forth in this part, the regulations now codified at 
part 659 of this chapter will be rescinded.
    (c) A System Safety Program Plan (SSPP) developed pursuant to 49 
CFR

[[Page 14258]]

part 659 shall serve as the rail transit agency's safety plan until one 
year one year after the effective date of the Public Transportation 
Agency Safety Plan final rule, which will be codified in part 673 of 
this chapter.

Subpart B--Role of the State


Sec.  674.11  State Safety Oversight Program.

    Within three years of April 15, 2016, every State that has a rail 
fixed guideway public transportation system must have a State Safety 
Oversight (SSO) program that has been approved by the Administrator. 
FTA will audit each State's compliance at least triennially, consistent 
with 49 U.S.C. 5329(e)(9). At minimum, an SSO program must:
    (a) Explicitly acknowledge the State's responsibility for 
overseeing the safety of the rail fixed guideway public transportation 
systems within the State;
    (b) Demonstrate the State's ability to adopt and enforce Federal 
and relevant State law for safety in rail fixed guideway public 
transportation systems;
    (c) Establish a State safety oversight agency, by State law, in 
accordance with the requirements of 49 U.S.C. 5329(e) and this part;
    (d) Demonstrate that the State has determined an appropriate 
staffing level for the State safety oversight agency commensurate with 
the number, size, and complexity of the rail fixed guideway public 
transportation systems in the State, and that the State has consulted 
with the Administrator for that purpose;
    (e) Demonstrate that the employees and other personnel of the State 
safety oversight agency who are responsible for the oversight of rail 
fixed guideway public transportation systems are qualified to perform 
their functions, based on appropriate training, including substantial 
progress toward or completion of the Public Transportation Safety 
Certification Training Program; and
    (f) Demonstrate that by law, the State prohibits any public 
transportation agency in the State from providing funds to the SSOA.


Sec.  674.13  Designation of oversight agency.

    (a) Every State that must establish a State Safety Oversight 
program in accordance with 49 U.S.C. 5329(e) must also establish a SSOA 
for the purpose of overseeing the safety of rail fixed guideway public 
transportation systems within that State. Further, the State must 
ensure that:
    (1) The SSOA is financially and legally independent from any public 
transportation agency the SSOA is obliged to oversee;
    (2) The SSOA does not directly provide public transportation 
services in an area with a rail fixed guideway public transportation 
system the SSOA is obliged to oversee;
    (3) The SSOA does not employ any individual who is also responsible 
for administering a rail fixed guideway public transportation system 
the SSOA is obliged to oversee;
    (4) The SSOA has authority to review, approve, oversee, and enforce 
the public transportation agency safety plan for a rail fixed guideway 
public transportation system required by 49 U.S.C. 5329(d);
    (5) The SSOA has investigative and enforcement authority with 
respect to the safety of all rail fixed guideway public transportation 
systems within the State;
    (6) At least once every three years, the SSOA audits every rail 
fixed guideway public transportation system's compliance with the 
public transportation agency safety plan required by 49 U.S.C. 5329(d); 
and
    (7) At least once a year, the SSOA reports the status of the safety 
of each rail fixed guideway public transportation system to the 
Governor, the FTA, and the board of directors, or equivalent entity, of 
the rail fixed guideway public transportation system.
    (b) At the request of the Governor of a State, the Administrator 
may waive the requirements for financial and legal independence and the 
prohibitions on employee conflict of interest under paragraphs (a)(1) 
and (3) of this section, if the rail fixed guideway public 
transportation systems in design, construction, or revenue operations 
in the State have fewer than one million combined actual and projected 
rail fixed guideway revenue miles per year or provide fewer than ten 
million combined actual and projected unlinked passenger trips per 
year. However:
    (1) If a State shares jurisdiction over one or more rail fixed 
guideway public transportation systems with another State, and has one 
or more rail fixed guideway public transportation systems that are not 
shared with another State, the revenue miles and unlinked passenger 
trips of the rail fixed guideway public transportation system under 
shared jurisdiction will not be counted in the Administrator's decision 
whether to issue a waiver.
    (2) The Administrator will rescind a waiver issued under this 
subsection if the number of revenue miles per year or unlinked 
passenger trips per year increases beyond the thresholds specified in 
this subsection.


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

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


Sec.  674.17  Use of Federal financial assistance.

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

[[Page 14259]]

revenues earned by a public transportation agency.


Sec.  674.19  Certification of a State Safety Oversight Program.

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


Sec.  674.21  Withholding of Federal financial assistance for 
noncompliance.

    (a) In making a decision to impose financial penalties as 
authorized by 49 U.S.C. 5329(e), and determining the nature and amount 
of the financial penalties, the Administrator shall consider the extent 
and circumstances of the noncompliance; the operating budgets of the 
SSOA and the rail fixed guideway public transportation systems that 
will be affected by the financial penalties; and such other matters as 
justice may require.
    (b) If a State fails to establish a SSO program that has been 
approved by the Administrator within three years of the effective date 
of this part, FTA will be prohibited from obligating Federal financial 
assistance apportioned under 49 U.S.C. 5338 to any entity in the State 
that is otherwise eligible to receive that Federal financial 
assistance, in accordance with 49 U.S.C. 5329(e)(3).


Sec.  674.23  Confidentiality of information.

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

Subpart C--State Safety Oversight Agencies


Sec.  674.25  Role of the State safety oversight agency.

    (a) An SSOA must establish minimum standards for the safety of all 
rail fixed guideway public transportation systems within its oversight. 
These minimum standards must be consistent with the National Public 
Transportation Safety Plan, the Public Transportation Safety 
Certification Training Program, the rules for Public Transportation 
Agency Safety Plans and all applicable Federal and State law.
    (b) An SSOA must review and approve the Public Transportation 
Agency Safety Plan for every rail fixed guideway public transportation 
system within its oversight. An SSOA must oversee an RTA's execution of 
its Public Transportation Agency Safety Plan. An SSOA must enforce the 
execution of a Public Transportation Agency Safety Plan, through an 
order of a corrective action plan or any other means, as necessary or 
appropriate. An SSOA must ensure that a Public Transportation Agency 
Safety Plan meets the requirements at 49 U.S.C. 5329(d).
    (c) An SSOA has primary responsibility for the investigation of any 
allegation of noncompliance with a Public Transportation Agency Safety 
Plan. These responsibilities do not preclude the Administrator from 
exercising his or her authority under 49 U.S.C. 5329(f) or 49 U.S.C. 
5330.
    (d) An SSOA has primary responsibility for the investigation of an 
accident on a rail fixed guideway public transportation system. This 
responsibility does not preclude the Administrator from exercising his 
or her authority under 49 U.S.C. 5329(f) or 49 U.S.C. 5330.
    (e) An SSOA may enter into an agreement with a contractor for 
assistance in overseeing accident investigations; performing 
independent accident investigations; and reviewing incidents and 
occurrences; and for expertise the SSOA does not have within its own 
organization.
    (f) All personnel and contractors employed by an SSOA must comply 
with the requirements of the Public Transportation Safety Certification 
Training Program as applicable.


Sec.  674.27  State safety oversight program standards.

    (a) An SSOA must adopt and distribute a written SSO program 
standard, consistent with the National Public Transportation Safety 
Plan and the rules for Public Transportation Agency Safety Plans. This 
SSO program standard must identify the processes and procedures that 
govern the activities of the SSOA. Also, the SSO program standard must 
identify the processes and procedures an RTA must have in place to 
comply with the standard. At minimum, the program standard must meet 
the following requirements:
    (1) Program management. The SSO program standard must explain the 
authority of the SSOA to oversee the safety of rail fixed guideway 
public transportation systems; the policies that govern the activities 
of the SSOA; the reporting requirements that govern both the SSOA and 
the rail fixed guideway public transportation systems; and the steps 
the SSOA will take to ensure open, on-going communication between

[[Page 14260]]

the SSOA and every rail fixed guideway public transportation system 
within its oversight.
    (2) Program standard development. The SSO program standard must 
explain the SSOA's process for developing, reviewing, adopting, and 
revising its minimum standards for safety, and distributing those 
standards to the rail fixed guideway public transportation systems.
    (3) Program policy and objectives. The SSO program standard must 
set an explicit policy and objectives for safety in rail fixed guideway 
public transportation throughout the State.
    (4) Oversight of Rail Public Transportation Agency Safety Plans and 
Transit Agencies' internal safety reviews. The SSO program standard 
must explain the role of the SSOA in overseeing an RTA's execution of 
its Public Transportation Agency Safety Plan and any related safety 
reviews of the RTA's fixed guideway public transportation system. The 
program standard must describe the process whereby the SSOA will 
receive and evaluate all material submitted under the signature of an 
RTA's accountable executive. Also, the program standard must establish 
a procedure whereby an RTA will notify the SSOA before the RTA conducts 
an internal review of any aspect of the safety of its rail fixed 
guideway public transportation system.
    (5) Triennial SSOA audits of Rail Public Transportation Agency 
Safety Plans. The SSO program standard must explain the process the 
SSOA will follow and the criteria the SSOA will apply in conducting a 
complete audit of the RTA's compliance with its Public Transportation 
Agency Safety Plan at least once every three years, in accordance with 
49 U.S.C. 5329. Alternatively, the SSOA and RTA may agree that the SSOA 
will conduct its audit on an on-going basis over the three-year 
timeframe. The program standard must establish a procedure the SSOA and 
RTA will follow to manage findings and recommendations arising from the 
triennial audit.
    (6) Accident notification. The SSO program standard must establish 
requirements for an RTA to notify the SSOA of accidents on the RTA's 
rail fixed guideway public transportation system. These requirements 
must address, specifically, the time limits for notification, methods 
of notification, and the nature of the information the RTA must submit 
to the SSOA.
    (7) Investigations. The SSO program standard must identify 
thresholds for accidents that require the RTA to conduct an 
investigation. Also, the program standard must address how the SSOA 
will oversee an RTA's internal investigation; the role of the SSOA in 
supporting any investigation conducted or findings and recommendations 
made by the NTSB or FTA; and procedures for protecting the 
confidentiality of the investigation reports.
    (8) Corrective actions. The program standard must explain the 
process and criteria by which the SSOA may order an RTA to develop and 
carry out a Corrective Action Plan (CAP), and a procedure for the SSOA 
to review and approve a CAP. Also, the program standard must explain 
the SSOA's policy and practice for tracking and verifying an RTA's 
compliance with the CAP, and managing any conflicts between the SSOA 
and RTA relating either to the development or execution of the CAP or 
the findings of an investigation.
    (b) At least once a year an SSOA must submit its SSO program 
standard and any referenced program procedures to FTA, with an 
indication of any revisions made to the program standard since the last 
annual submittal. FTA will evaluate the SSOA's program standard as part 
of its continuous evaluation of the State Safety Oversight Program, and 
in preparing FTA's report to Congress on the certification status of 
that State Safety Oversight Program, in accordance with 49 U.S.C. 5329.


Sec.  674.29  Public Transportation Agency Safety Plans: general 
requirements.

    (a) In determining whether to approve a Public Transportation 
Agency Safety Plan for a rail fixed guideway public transportation 
system, an SSOA must evaluate whether the Public Transportation Agency 
Safety Plan is consistent with the regulations implementing such Plans; 
is consistent with the National Public Transportation Safety Plan; and 
is in compliance with the program standard set by the SSOA.
    (b) In determining whether a Public Transportation Agency Safety 
Plan is compliant with 49 CFR part 673, an SSOA must determine, 
specifically, whether the Public Transportation Agency Safety Plan is 
approved by the RTA's board of directors or equivalent entity; sets 
forth a sufficiently explicit process for safety risk management, with 
adequate means of risk mitigation for the rail fixed guideway public 
transportation system; includes a process and timeline for annually 
reviewing and updating the safety plan; includes a comprehensive staff 
training program for the operations personnel directly responsible for 
the safety of the RTA; identifies an adequately trained safety officer 
who reports directly to the general manager, president, or equivalent 
officer of the RTA; includes adequate methods to support the execution 
of the Public Transportation Agency Safety Plan by all employees, 
agents, and contractors for the rail fixed guideway public 
transportation system; and sufficiently addresses other requirements 
under the regulations at 49 CFR part 673.
    (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 RTA an opportunity to modify and resubmit 
its Public Transportation Agency Safety Plan for the SSOA's approval.


Sec.  674.31  Triennial audits: general requirements.

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


Sec.  674.33  Notifications of accidents.

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


Sec.  674.35  Investigations.

    (a) An SSOA must investigate or require an investigation of any 
accident and is ultimately responsible for the sufficiency and 
thoroughness of all investigations, whether conducted by

[[Page 14261]]

the SSOA or RTA. If an SSOA requires an RTA to investigate an accident, 
the SSOA must conduct an independent review of the RTA's findings of 
causation. In any instance in which an RTA is conducting its own 
internal investigation of the accident or incident, the SSOA and the 
RTA must coordinate their investigations in accordance with the SSO 
program standard and any agreements in effect.
    (b) Within a reasonable time, an SSOA must issue a written report 
on its investigation of an accident or review of an RTA's accident 
investigation in accordance with the reporting requirements established 
by the SSOA. The report must describe the investigation activities; 
identify the factors that caused or contributed to the accident; and 
set forth a corrective action plan, as necessary or appropriate. The 
SSOA must formally adopt the report of an accident and transmit that 
report to the RTA for review and concurrence. If the RTA does not 
concur with an SSOA's report, the SSOA may allow the RTA to submit a 
written dissent from the report, which may be included in the report, 
at the discretion of the SSOA.
    (c) All personnel and contractors that conduct investigations on 
behalf of an SSOA must be trained to perform their functions in 
accordance with the Public Transportation Safety Certification Training 
Program.
    (d) The Administrator may conduct an independent investigation of 
any accident or an independent review of an SSOA's or an RTA's findings 
of causation of an accident.


Sec.  674.37  Corrective action plans.

    (a) In any instance in which an RTA must develop and carry out a 
CAP, the SSOA must review and approve the CAP before the RTA carries 
out the plan; however, an exception may be made for immediate or 
emergency corrective actions that must be taken to ensure immediate 
safety, provided that the SSOA has been given timely notification, and 
the SSOA provides subsequent review and approval. A CAP must describe, 
specifically, the actions the RTA will take to minimize, control, 
correct, or eliminate the risks and hazards identified by the CAP, the 
schedule for taking those actions, and the individuals responsible for 
taking those actions. The RTA must periodically report to the SSOA on 
its progress in carrying out the CAP. The SSOA may monitor the RTA's 
progress in carrying out the CAP through unannounced, on-site 
inspections, or any other means the SSOA deems necessary or 
appropriate.
    (b) In any instance in which a safety event on the RTA's rail fixed 
guideway public transportation system is the subject of an 
investigation by the NTSB, the SSOA must evaluate whether the findings 
or recommendations by the NTSB require a CAP by the RTA, and if so, the 
SSOA must order the RTA to develop and carry out a CAP.


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

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


Sec.  674.41  Conflicts of interest.

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

[[Page 14262]]

Appendix to Part 674--Notification and Reporting of Accidents, 
Incidents, and Occurrences

----------------------------------------------------------------------------------------------------------------
                                                                            Types of events
        Event/threshold             Human factors       Property damage        (examples)            Actions
----------------------------------------------------------------------------------------------------------------
Accident: Rail Transit Agency   --Fatality (occurring  --Property        --A collision between  --RTA to notify
 (RTA) to Notify State Safety    at the scene or        damage            a rail transit         SSOA and FTA
 Oversight Agency (SSOA) SSO     within 30 days         resulting from    vehicle and another    within 2 hours;
 and Federal Transit             following the          a collision       rail transit vehicle.  Investigation
 Administration (FTA) within     accident).             involving a      --A collision at a      required.
 two hours.                     --One or more persons   rail transit      grade crossing        --RTA to report
                                 suffering serious      vehicle; or any   resulting in serious   to FTA within
                                 injury (Serious        derailment of a   injury or fatality.    30 days via the
                                 injury means any       rail transit     --A collision with a    National
                                 injury which: (1)      vehicle.          person resulting in    Transit
                                 Requires                                 serious injury or      Database (NTD).
                                 hospitalization for                      fatality.             --RTA to record
                                 more than 48 hours,                     --A collision with an   for SMS
                                 commencing within 7                      object resulting in    Analysis.
                                 days from the date                       serious injury or
                                 of the injury was                        fatality.
                                 received; (2)                           --A runaway train....
                                 results in a                            --Evacuation due to
                                 fracture of any bone                     life safety reasons..
                                 (except simple                          --A derailment
                                 fractures of                             (mainline or yard)..
                                 fingers, toes, or                       --Fires resulting in
                                 nose); (3) causes                        a serious injury or
                                 severe hemorrhages,                      fatality..
                                 nerve, muscle, or
                                 tendon damage; (4)
                                 involves any
                                 internal organ; or
                                 (5) involves second-
                                 or third-degree
                                 burns, or any burns
                                 affecting more than
                                 5 percent of the
                                 body surface.).
Incident: RTA to Report to FTA  --A personal injury    --Non-collision-  --Evacuation of a      --RTA to report
 (NTD) within 30 days.           that is not a          related damage    train into the right-  to FTA within
                                 serious injury.        to equipment,     of-way or onto         30 days via the
                                --One or more           rolling stock,    adjacent track; or     National
                                 injuries requiring     or                customer self-         Transit
                                 medical                infrastructure    evacuation.            Database (NTD).
                                 transportation away    that disrupts    --Certain low-speed    --RTA to record
                                 from the event.        the operations    collisions involving   for SMS
                                                        of a transit      a rail transit         Analysis.
                                                        agency.           vehicle that result
                                                                          in a non-serious
                                                                          injury or property
                                                                          damage.
                                                                         --Damage to catenary
                                                                          or third-rail
                                                                          equipment that
                                                                          disrupts transit
                                                                          operations.
                                                                         --Fires that result
                                                                          in a non-serious
                                                                          injury or property
                                                                          damage.
                                                                         --A train stopping
                                                                          due to an
                                                                          obstruction in the
                                                                          tracks/``hard
                                                                          stops''.
                                                                         --Most hazardous
                                                                          material spills..
Occurrence: RTA to record data  --No personal injury.  --Non-collision-  --Close Calls/Near     --RTA will
 and make available for SSO                             related damage    Misses.                collect, track
 and/or FTA review.                                     to equipment,    --Safety rule           and analyze
                                                        rolling stock,    violations..           data on
                                                        or               --Violations of         Occurrences to
                                                        infrastructure    safety policies..      reduce the
                                                        that does not    --Damage to catenary    likelihood of
                                                        disrupt the       or third-rail          recurrence and
                                                        operations of a   equipment that do      inform the
                                                        transit agency.   not disrupt            practice of
                                                                          operations..           SMS.
                                                                         --Vandalism or theft.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2016-05489 Filed 3-15-16; 8:45 am]
BILLING CODE 4910-57-P