Summary of Meetings with Stakeholders - NPRM Proposed New Requirements

Headquarters

1200 New Jersey Avenue, SE
Washington, DC 20590

Docket No. FTA-2023-0007
Subject:

Ex Parte Communications Memorandum

Representatives from the Federal Transit Administration (FTA) participated in five meetings
with stakeholders in which discussions relevant to the Public Transportation Agency Safety
Plans (PTASP) Notice of Proposed Rulemaking (NPRM) occurred. These meetings occurred
prior to FTA issuing the PTASP NPRM in the Federal Register.
In accordance with the Department of Transportation’s Guidance on Communication with
Parties outside of the Federal Executive Branch (Ex Parte Communications), 1 information about
these stakeholder meetings is provided below.
SUMMARY OF MEETINGS WITH STAKEHOLDERS
1. Meetings with Labor Representatives
Representatives from FTA participated in four meetings with labor representatives, in which
FTA received comments relevant to the PTASP NPRM. 2 The meetings were attended by staff
from FTA’s Office of Transit Safety and Oversight, Office of Chief Counsel, and Office of
Communications and Congressional Affairs, as well as representatives from the Amalgamated
Transit Union (ATU), Teamsters Union, Transportation Trades Department (TTD), Transport
Workers Union (TWU), and International Association of Sheet Metal, Air, Rail and
Transportation Workers (SMART).
The meeting dates and a summary of stakeholder comments are as follows:
•

April 21, 2022 – Stakeholders asked questions regarding the Bipartisan Infrastructure
Law Safety Committee requirements in 49 U.S.C. 5329(d) and FTA’s February 17, 2022
Dear Colleague Letter. One stakeholder sought guidance from FTA about the
appropriate size of a Safety Committee.

•

August 3, 2022 - Stakeholders commented that FTA should not allow a transit agency’s
Accountable Executive to overrule the recommendations of its Safety Committee. A

Available at: https://www.transportation.gov/sites/dot.gov/files/2022-04/Guidance-on-Communication-withParties-outside-of-the-Federal-Executive-Branch-%28Ex-Parte-Communications%29.pdf.
2
In addition, representatives from FTA met with labor representatives on May 26, 2022, October 7, 2022, and
February 16, 2023. FTA did not receive comments relevant to the PTASP NPRM during these meetings.
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stakeholder expressed concern about Safety Committees being deadlocked or unable to
agree on certain measures and asked what mechanism the Safety Committee should use
in such situations.
•

December 15, 2022 - A stakeholder asked if FTA planned to combine its transit worker
assault special directive effort with the PTASP rulemaking and suggested that FTA
include statutory language regarding transit worker assaults in the PTASP NPRM.

•

January 19, 2023 – A stakeholder suggested that PTASP performance targets capture
information about transit worker assaults. Another stakeholder commented that FTA
should address minimum workstation requirements through the PTASP NPRM, noting
that operator barriers can mitigate assaults on transit workers.

2. Meeting with New York Metropolitan Transportation Authority
On April 29, 2022, representatives from FTA’s Office of Transit Safety and Oversight, Office of
Budget and Policy, and Office of Chief Counsel met virtually with representatives from the New
York Metropolitan Transportation Authority (NY MTA).
FTA answered questions from NY MTA about NTD reporting of assaults on transit workers, as
well as Bipartisan Infrastructure Law PTASP and risk-based inspection requirements. Written
materials from NY MTA are attached as Appendix A to this memorandum.
3. Meeting with the American Public Transportation Association (APTA)
On June 21, 2022, representatives from FTA’s Office of Transit Safety and Oversight and Office
of Chief Counsel met with representatives from APTA to discuss a letter that APTA sent to FTA,
dated June 7, 2022. The letter is attached as Appendix B to this memorandum.
4. Meeting with ATU
On November 1, 2022, representatives from FTA met with ATU representatives. During this
meeting, ATU commented that FTA should address operator assault in the PTASP NPRM.

Appendix A
Questions for FTA regarding Bi-Partisan Law ASP Changes
A. Categories of assaults required to be identified by FTA?
1. Assaults to be defined as per respective state penial code – Not to include incidents
classified as harassments
B. Performance Targets and risk reduction
1. What are the changes (adding or deletion) to the existing performance targets. It
would be preferred to have targets that the RTA has control of.
Current target categories
a) Customer and Employee Fatalities
b) Customer and Employee Injuries
c) Safety Events (e.g. collisions, derailments, fires, evacuations, haz mat spills, acts
of god, etc)
d) System Reliability (mean distance between major mechanical failures by mode)
2. Request targets to be limited to physical injuries, not harassments, trauma due to
suicides, etc.
3. Request that not all Safety Events be created equal, e.g. severity of fires, collision in
yard vs on the main line.
4. Identify the target value that we would be aiming for or are they looking for a
percentage.
5. Is there a time frame for when the NTD will release the intended revisions to the
reported categories?
6. Any thought on removing MDBF as measured target category, more of a system
performance item?
C. SSOA risk-based inspection program and data collection
1. Are the guidelines that the FTA will require that the states put into place or is it in
line with what NYS is already performing?

Appendix B

June 7, 2022

The Honorable Nuria Fernandez
Administrator
Federal Transit Administration
U.S. Department of Transportation
1200 New Jersey Avenue S.E.
Washington, DC 20590
Subject: Bipartisan Infrastructure Law Changes to Public Transportation
Safety Agency Safety Plan Requirements
Dear Administrator Fernandez:
Safety is the number one core value of the public transportation industry,
including bus, rail, commuter and intercity rail and ferry operators. The
employees responsible for managing and operating public transportation
systems are fully committed to the safety of their systems, passengers,
fellow employees, and the public. As a result of this commitment to safety,
traveling by public transportation is ten times safer per mile than traveling
by car.
We greatly appreciate the ongoing dialogue between the Federal Transit
Administration (FTA) and the American Public Transportation Association
(APTA) regarding safety, including the Bipartisan Infrastructure Law’s
(BIL) recent statutory changes to the public transportation agency safety
plan (PTASP) requirements at 49 U.S.C. § 5329(d). These changes require
that, for large public transit agencies, a Safety Committee be formed
consisting of equal numbers of management and front-line workers, who
will be tasked with approving the Safety Plan. The Safety Committee will
have significant authority. Moreover, FTA’s Urbanized Area Formula
Grants are tied directly to an approved Safety Plan. As such, we strongly
encourage FTA to ensure that the Safety Committees remain focused
exclusively on safety, and not serve as a forum for other issues or
collective bargaining.
In addition, we are concerned with FTA’s implementation of the new BIL
safety requirements, as outlined in its “Dear Colleague Letter: Bipartisan

The Honorable Nuria Fernandez
June 7, 2022
Page 2
Infrastructure Law Changes to PTASP Requirements”, published on February 17, 2022. FTA
chose to impose these requirements through a Dear Colleague letter without the benefit of public
notice and comment, including an analysis of the impact of the new requirements and the deadlines
associated with them on public transit agencies. When APTA staff inquired about the lack of public
notice and comment with FTA, we were informed that some of the Bipartisan Infrastructure Law
requirements at 49 U.S.C. § 5329(d) became effective immediately when signed into law and are
self-effectuating. FTA staff further stated that the Dear Colleague letter establishes compliance
deadlines for transit agencies to implement these new provisions and agencies must comply with
the deadlines established in the letter.
While transit agencies are required to follow federal requirements, it is APTA’s understanding that
FTA must provide notice and comment prior to imposing a binding obligation on federal grant
recipients,1 as required by 49 U.S.C. §5334(k):
(k) AGENCY STATEMENTS.—
(1) IN GENERAL.—The Administrator of the Federal Transit
Administration shall follow applicable rulemaking procedures
under section 553 of title 5 before the Federal Transit
Administration issues a statement that imposes a binding
obligation on recipients of Federal assistance under this chapter.
(2) BINDING OBLIGATION DEFINED.—In this subsection, the term
“binding obligation” means a substantive policy statement, rule,
or guidance document issued by the Federal Transit
Administration that grants rights, imposes obligations, produces
significant effects on private interests, or effects a significant
change in existing policy.
Accordingly, APTA requests that FTA use federal rulemaking procedures to gather
comments from the public transit industry and other stakeholders before these requirements
and deadlines are established and become binding upon federal grant recipients.
In addition, APTA members are concerned about the short deadlines imposed by the Dear
Colleague letter for transit agencies to both form the new Safety Committees and have them review
and approve the PTASP. The Dear Colleague states that, “a transit agency that receives 5307
funding and serves a large urbanized area must establish a Safety Committee compliant with 49
U.S.C. §5329(d)(5) by July 31, 2022.”

Although the Dear Colleague letter states that, “The contents of this document do not have the force and effect of
the law and are not meant to bind the public in any way…”, FTA’s response that the Dear Colleague establishes
compliance deadlines for transit agencies to implement these new provisions and that transit agencies must comply
with the deadlines is a binding obligation that “imposes obligations . . . or effects a significant change in existing
policy.”
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The Honorable Nuria Fernandez
June 7, 2022
Page 3
APTA believes that this deadline is unreasonably short to create this important Safety Committee.
Multiple agencies state that they would have to make major revisions to their bylaws, charters, and
Board-approved policies to create the new Safety Committee consisting of equal representation of
management and labor. Many agencies will also need to have these policy changes approved by
their Boards of Directors. Establishing compliant Safety Committees under these new rules will
be a major undertaking, and APTA requests that FTA extend this July 31, 2022 deadline to
December 31, 2022, to allow transit agencies sufficient time to enact these significant changes to
the Safety Committee structure.
The Dear Colleague also establishes a deadline of December 31, 2022, for the newly established
Safety Committee to approve an update to its existing PTSAP. APTA believes this deadline does
not allow adequate time for Safety Plan approval and will not further our shared safety goals. We
believe that many transit agencies will need the remainder of 2022 to reestablish their Safety
Committees pursuant to BIL requirements. In addition, agencies must ensure that all Committee
members are trained in accordance with FTA’s safety regulations prior to reviewing and approving
any PTASP. For example, new Safety Committee members will need extensive training to
understand key Safety Management System (SMS) concepts; applicable security requirements;
new risk reduction requirements; and other technical issues associated with the PTASP and SMS
regulations. Accordingly, APTA requests that FTA extend the December 31, 2022 deadline
for the new Safety Committee approval of PTSAPs to July 31, 2023.
Many transit agencies also expressed concern that aligning the State Safety Oversight Agency
(SSOA) program standard with this new requirement may be difficult. FTA must inform all
SSOAs about these significant changes to the PTASP requirements to ensure a common
understanding of the new requirements. APTA believes that extending the time for approval of
PTSAPs by the new Safety Committee to July 31, 2023, will also serve to ensure that SSOA
program standards are aligned with the new Safety Committee requirements.
In summary, APTA requests that FTA use the federal rulemaking process to allow for public
comment prior to imposing these binding requirements. We also urge FTA to extend the deadlines
for transit agencies to form their new Safety Committees to December 31, 2022, and for review
and approval of PTASPs to July 31, 2023.
If you have any questions regarding this letter, please contact Brian Alberts, APTA’s Senior
Director of Safety and Advisory Services, at balberts@apta.com or 202.496.4885.
Thank you for your consideration.
Sincerely,

Paul P. Skoutelas
President and CEO
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