PTASP Final Rulemaking Published April 11 2024

25694

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 673
[Docket No. FTA–2023–0007]
RIN 2132–AB44

Public Transportation Agency Safety
Plans
Federal Transit Administration
(FTA), Department of Transportation
(DOT).
ACTION: Final rule.
AGENCY:

The Federal Transit
Administration (FTA) is publishing a
final rule for Public Transportation
Agency Safety Plans (PTASP). This final
rule includes requirements for Agency
Safety Plans (ASP), Safety Committees,
cooperation with frontline transit
worker representatives in the
development of ASPs, safety risk
reduction programs, safety performance
targets, de-escalation training for certain
transit workers, and addressing
infectious diseases through the Safety
Management System (SMS) process.
This final rule also finalizes revisions to
the regulation to coordinate and align
with other FTA programs and safety
rulemakings.
DATES: The effective date of this rule is
May 13, 2024.
ADDRESSES: FTA’s Office of Transit
Safety and Oversight (TSO) will host a
webinar to discuss the requirements of
the Public Transportation Agency Safety
Plans (PTASP) final rule. Visit https://
www.transit.dot.gov/ptasp for more
information and to RSVP. Please visit
https://www.transit.dot.gov/ptasp to
register for webinars and for information
about future webinars. FTA is
committed to providing equal access for
all webinar participants. If you need
alternative formats, options, or services,
contact FTA-Knowledge@dot.gov at least
three business days prior to the event.
If you have any questions, please email
FTA-Knowledge@dot.gov.
FOR FURTHER INFORMATION CONTACT: For
program matters, contact Stewart Mader,
Office of Transit Safety and Oversight,
(202) 366–9677 or stewart.mader@
dot.gov. For legal matters, contact
Heather Ueyama, Office of Chief
Counsel, (202) 366–7374 or
heather.ueyama@dot.gov.
Office hours are from 8:30 a.m. to 5
p.m., Monday through Friday, except
Federal holidays.
SUPPLEMENTARY INFORMATION:

khammond on DSKJM1Z7X2PROD with RULES2

SUMMARY:

Table of Contents
I. Executive Summary

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

A. FTA Efforts To Address Transit Worker
Safety
B. Statutory Authority
C. Summary of Key Provisions
D. Benefits and Costs
II. Notice of Proposed Rulemaking and
Response to Comments
A. Section 673.1—Applicability
B. Section 673.5—Definitions
C. Section 673.11—Agency Safety Plans
D. Section 673.13—Certification of
Compliance
E. Section 673.17—Cooperation With
Frontline Transit Worker Representatives
F. Section 673.19—Safety Committee
G. Section 673.20—Safety Risk Reduction
Program
H. Section 673.23—Safety Management
Policy
I. Section 673.25—Safety Risk Management
J. Section 673.27—Safety Assurance
K. Section 673.29—Safety Promotion
L. Section 673.31—Safety Plan
Documentation
M. Other Topics
N. Regulatory Impact Analysis
O. Regulatory Burden
III. Section-by-Section Analysis
IV. Regulatory Analyses and Notices

I. Executive Summary
This final rule amends the Public
Transportation Agency Safety Plans
(PTASP) regulation at 49 CFR part 673
with new requirements that implement
statutory changes in the Bipartisan
Infrastructure Law, enacted as the
Infrastructure Investment and Jobs Act
(Pub. L. 117–58; November 15, 2021).
The Bipartisan Infrastructure Law
amends FTA’s safety program at 49
U.S.C. 5329 and adds to the PTASP
requirements for public transportation
systems that receive Federal financial
assistance under 49 U.S.C. Chapter 53
(Chapter 53). This final rule also builds
on the existing PTASP final rule
published in 2018 to enhance the Safety
Management System (SMS) process and
finalizes revisions to the regulation to
coordinate and align with other FTA
programs and safety rulemakings.
A. FTA Efforts To Address Transit
Worker Safety
The Bipartisan Infrastructure Law
amended the PTASP requirements by
adding a risk reduction program that
addresses, at a minimum, transit worker
safety and reduction of pedestrian/bus
collisions. Transit worker safety is a top
priority for FTA. Since the previous
PTASP Final Rule became effective in
2019,1 FTA has taken a series of actions
to improve transit worker safety and
address the risk of assaults on transit
workers. In 2019, FTA issued a notice
1 Public Transportation Agency Safety Plans, 83
FR 34418 (2018) (Codified at 49 CFR part 673).
https://www.federalregister.gov/documents/2018/
07/19/2018-15167/public-transportation-agencysafety-plan.

PO 00000

Frm 00002

Fmt 4701

Sfmt 4700

in the Federal Register advising transit
agencies subject to the PTASP
regulation that where instances of
operator assault are identified, transit
agencies should, as required by the
PTASP regulation, take steps to identify
mitigations or strategies necessary to
reduce the likelihood and severity of
occurrences of operator assault.2
In 2020, FTA launched the Bus
Operator Compartment Redesign
Program 3 to improve safety, operational
efficiency, and passenger accessibility.
In 2021, FTA launched the Enhanced
Transit Safety and Crime Prevention
Initiative,4 issued a Request for
Information (RFI) on Transit Worker
Safety,5 and used its Safety Risk
Management (SRM) process to assess
the safety risk of the potential
consequences of identified hazards
associated with assaults on transit
workers. Also in 2021, the National
Transit Institute began offering Assault
Awareness and Prevention for Transit 6
training courses sponsored by FTA.
In 2022, shortly after enactment of the
Bipartisan Infrastructure Law, FTA
issued a Dear Colleague Letter 7
informing transit agencies of the
statutory changes to PTASP
requirements and establishing
compliance dates for transit agencies to
establish joint labor-management Safety
Committees and revise Agency Safety
Plans (ASP) in cooperation with
frontline employee representatives to
address Bipartisan Infrastructure Law
requirements that strengthen frontline
transit worker involvement in transit
2 Protecting Public Transportation Operators
From the Risk of Assault, 84 FR 24196 (May 24,
2019). https://www.federalregister.gov/documents/
2019/05/24/2019-10281/protecting-publictransportation-operators-from-the-risk-of-assault.
3 Federal Transit Administration (March 2020).
‘‘Redesign of Transit Bus Operator Compartment to
Improve Safety, Operational Efficiency, and
Passenger Accessibility (Bus Operator
Compartment) Program.’’ https://www.transit.
dot.gov/research-innovation/redesign-transit-busoperator-compartment-improve-safety-operationalefficiency.
4 Federal Transit Administration (October 2021).
‘‘Enhanced Transit Safety and Crime Prevention
Initiative.’’ https://www.transit.dot.gov/regulationsand-programs/safety/enhanced-transit-safety-andcrime-prevention-initiative.
5 Federal Transit Administration (September
2021). ‘‘Federal Transit Administration Announces
Request for Information on Transit Worker Safety.’’
https://www.transit.dot.gov/about/news/federaltransit-administration-announces-requestinformation-transit-worker-safety.
6 Federal Transit Administration (October 2023).
‘‘FTA-Sponsored Training Courses.’’ https://
www.transit.dot.gov/regulations-and-guidance/
safety/fta-sponsored-training-courses.
7 Federal Transit Administration (February 17,
2022). ‘‘Dear Colleague Letter: Bipartisan
Infrastructure Law Changes to PTASP
Requirements.’’ https://www.transit.dot.gov/safety/
public-transportation-agency-safety-program/dearcolleague-letter-bipartisan-infrastructure.

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

khammond on DSKJM1Z7X2PROD with RULES2

safety. FTA also published a notice in
the Federal Register seeking comment
on proposed changes and clarifications
to the National Transit Database (NTD)
Safety and Security (S&S) reporting
requirements,8 issued nine Special
Directives on Required Actions
Regarding Transit Worker Assault 9 to
transit agencies accounting for 79% of
all transit worker assaults reported to
the NTD, and published a Notice of
Funding Opportunity in the Federal
Register for the Transit Worker and
Rider Safety Best Practices Research
Project.10
To implement Bipartisan
Infrastructure Law requirements related
to assaults on transit workers and
vehicular and pedestrian accidents
involving buses, FTA published three
notices in the Federal Register in 2023:
a notice finalizing NTD S&S reporting
requirements to expand reporting,11 a
notice of proposed rulemaking (NPRM)
seeking comment on proposed new
PTASP requirements,12 and a notice
seeking comment on proposed changes
to the National Public Transportation
Safety Plan (National Safety Plan).13
FTA also published a notice in the
Federal Register seeking comment on a
proposed General Directive on Required
Actions Regarding Assaults on Transit
Workers.14 In addition, FTA is pursuing
other policy actions on transit worker
safety, including an advance notice of
proposed rulemaking (ANPRM)
published in the Federal Register on
Transit Worker Hours of Service and
8 National Transit Database Safety and Security
Reporting Changes and Clarifications, 87 FR 42539
(July 15, 2022). https://www.federalregister.gov/
documents/2022/07/15/2022-15167/nationaltransit-database-safety-and-security-reportingchanges-and-clarifications.
9 Federal Transit Administration (October 2022).
‘‘Special Directives on Required Actions Regarding
Transit Worker Assault.’’ https://www.transit.
dot.gov/regulations-and-guidance/safety/ftaspecial-directives#SDTWA.
10 Federal Transit Administration (December
2022). ‘‘Transit Worker and Rider Safety Best
Practices Research Project.’’ https://www.transit.
dot.gov/funding/grants/TWRS.
11 National Transit Database Safety and Security
Reporting Changes and Clarifications, 88 FR 11506
(February 23, 2023). https://www.federal
register.gov/documents/2023/02/23/2023-03789/
national-transit-database-safety-and-securityreporting-changes-and-clarifications.
12 Public Transportation Agency Safety Plans, 88
FR 25336 (April 26, 2023). https://www.federal
register.gov/documents/2023/04/26/2023-08777/
public-transportation-agency-safety-plans.
13 National Public Transportation Safety Plan, 88
FR 34917 (May 31, 2023). https://www.federal
register.gov/documents/2023/05/31/2023-11551/
national-public-transportation-safety-plan.
14 General Directive 24–1: Required Actions
Regarding Assaults on Transit Workers, 88 FR
88213 (December 20, 2023). https://www.federal
register.gov/documents/2023/12/20/2023-28002/
proposed-general-directive-24-1-required-actionsregarding-assaults-on-transit-workers.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Fatigue Risk Management,15 a planned
NPRM on Transit Worker and Public
Safety (RIN 2132–AB47),16 and an
NPRM on Rail Transit Roadway Worker
Protection (RWP) published in the
Federal Register.17
B. Statutory Authority
Congress directed FTA to establish a
comprehensive Public Transportation
Safety Program, one element of which is
the requirement for PTASP, in the
Moving Ahead for Progress in the 21st
Century Act (Pub. L. 112–141; July 6,
2012) (MAP–21), which was
reauthorized by the Fixing America’s
Surface Transportation Act (Pub. L.
114–94; December 4, 2015). To
implement the requirements of 49
U.S.C. 5329(d), FTA issued a final rule
on July 19, 2018, that added part 673,
‘‘Public Transportation Agency Safety
Plans,’’ to title 49 of the Code of Federal
Regulations (83 FR 34418).
The Bipartisan Infrastructure Law
continues the Public Transportation
Safety Program and adds to the PTASP
requirements for public transportation
systems that receive Federal financial
assistance under chapter 53.
C. Summary of Key Provisions
This rule finalizes FTA’s
implementation of several revisions to
49 U.S.C. 5329(d) enacted through the
Bipartisan Infrastructure Law,
including:
• Requirements for each recipient
that serves an urbanized area with a
population of fewer than 200,000 (small
urbanized area) to:
Æ Develop its ASP in cooperation
with frontline employee representatives
(49 U.S.C. 5329(d)(1)(B)); and
Æ Address in its ASP strategies to
minimize exposure to infectious
diseases, consistent with guidelines of
the Centers for Disease Control and
Prevention (CDC) or a State health
authority (49 U.S.C. 5329(d)(1)(D)).
• Requirements for each recipient of
Urbanized Area Formula Program funds
under section 5307 that serves an
urbanized area with a population of
200,000 or more (large urbanized area)
to:
Æ Establish a Safety Committee that is
convened by a joint labor-management
15 Transit Worker Hours of Service and Fatigue
Risk Management, 88 FR 74107 (October 30, 2023).
https://www.federalregister.gov/documents/2023/
10/30/2023-23916/transit-worker-hours-of-serviceand-fatigue-risk-management.
16 Office of Information and Regulatory Affairs
(2023). Unified Agenda: ‘‘Transit Worker and Public
Safety.’’ https://www.reginfo.gov/public/do/
eAgendaViewRule?pubId=202310&RIN=2132-AB47.
17 Rail Transit Roadway Worker Protection, 89 FR
20605 (March 25, 2024). https://www.federal
register.gov/documents/2024/03/25/2024-06251/
rail-transit-roadway-worker-protection.

PO 00000

Frm 00003

Fmt 4701

Sfmt 4700

25695

process and consists of an equal number
of (1) frontline employee
representatives, selected by a labor
organization representing the plurality
of the frontline workforce employed by
the recipient or, if applicable, a
contractor to the recipient, to the extent
frontline employees are represented by
labor organizations; and (2) management
representatives. (49 U.S.C. 5329(d)(5)).
This Safety Committee has
responsibility, at a minimum, for:
D Approving the transit agency’s ASP
and any updates to the ASP before
approval by the agency’s Board of
Directors or equivalent entity (49 U.S.C.
5329(d)(1)(A));
D Setting safety performance targets
for the safety risk reduction program
using a three-year rolling average of the
data submitted by the transit agency to
the NTD (49 U.S.C. 5329(d)(4)(A));
D Identifying and recommending riskbased mitigations or strategies necessary
to reduce the likelihood and severity of
consequences identified through the
agency’s safety risk assessment (49
U.S.C. 5329(d)(5)(A)(iii)(I));
D Identifying mitigations or strategies
that may be ineffective, inappropriate,
or were not implemented as intended
(49 U.S.C. 5329(d)(5)(A)(iii)(II)); and
D Identifying safety deficiencies for
purposes of continuous improvement
(49 U.S.C. 5329(d)(5)(A)(iii)(III)).
Æ Establish a safety risk reduction
program for transit operations to
improve safety by reducing the number
and rates of accidents, injuries, and
assaults on transit workers based on
data submitted to the NTD, including:
D A reduction of vehicular and
pedestrian accidents involving buses
that includes measures to reduce
visibility impairments for bus operators
that contribute to accidents, including
retrofits to buses in revenue service and
specifications for future procurements
that reduce visibility impairments; and
D The mitigation of assaults on transit
workers, including the deployment of
assault mitigation infrastructure and
technology on buses, including barriers
to restrict the unwanted entry of
individuals and objects into bus
operator workstations when a risk
analysis performed by the Safety
Committee determines that such barriers
or other measures would reduce assaults
on and injuries to transit workers (49
U.S.C. 5329(d)(1)(I)).
Æ Allocate not less than 0.75 percent
of its section 5307 funds to safetyrelated projects eligible under section
5307 (safety set-aside). In the event the
transit agency fails to meet a safety risk
reduction program safety performance
target:

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

25696

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

D Allocate the transit agency’s safety
set-aside in the following fiscal year to
projects that are reasonably likely to
assist the agency in meeting the target,
including modifications to rolling stock
and de-escalation training (49 U.S.C.
5329(d)(4)).
Æ Ensure the agency’s comprehensive
staff training program includes
maintenance personnel and deescalation training (49 U.S.C.
5329(d)(1)(H)(ii)).
Æ Address in its ASP strategies to
minimize exposure to infectious
diseases, consistent with guidelines of
the CDC or a State health authority (49
U.S.C. 5329(d)(1)(D)).
Many of FTA’s proposals from the
NPRM are finalized without change. In
response to comments, FTA made
minor, non-substantive changes to
§ 673.5 related to the terms ‘‘injury,’’
‘‘performance target,’’ and ‘‘safety
performance target.’’
In addition, the final rule includes
amended requirements related to the
role of the Safety Committee, Safety
Committee procedures, the role of the
Accountable Executive, and the safety
risk reduction program.
In response to comments, FTA has
made minor changes to the Safety
Committee requirements in § 673.19.
These changes provide additional
clarity and specificity regarding Safety
Committee procedures. FTA has revised
§ 673.19(c)(2) to provide that Safety
Committee procedures must address
how meeting notices will be developed
and shared. FTA added a requirement at
§ 673.19(c)(4) that Safety Committee
procedures include the compensation
policy established by the transit agency
for participation in Safety Committee
meetings. In this provision, FTA is not
requiring transit agencies to compensate
members of the Safety Committee;
rather, it is requiring the transit agency
to adopt a policy regarding Safety
Committee compensation and that the
Safety Committee procedures include
the policy the transit agency has
adopted.
In response to comments, FTA also
has revised §§ 673.19(c)(6) and (c)(8) to
clarify that the Safety Committee
procedures must document the Safety
Committee’s decision-making processes
and to clarify that FTA is not requiring
Safety Committees to make decisions
through any specific voting
mechanisms. Regarding Safety
Committee disputes, FTA has revised
§ 673.19(c)(8) to clarify that the ASP
must include procedures for how the
Safety Committee will manage disputes
to ensure that it carries out its
operations, and may use the dispute
resolution or arbitration process from

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

the transit agency’s Collective
Bargaining Agreement, or some other
process that the Safety Committee
develops and agrees upon. The
Accountable Executive, however, may
not have a tiebreaking role in resolving
Safety Committee disputes, because that
would be inconsistent with the statutory
requirements relating to the roles of
Safety Committees. Additionally, FTA
strengthened the focus of the provisions
on cooperation with frontline transit
workers by grouping requirements for
Safety Committees and Cooperation
with Frontline Transit Worker
Representatives into a single Subpart C,
titled ‘‘Safety Committees and
Cooperation with Frontline Transit
Worker Representatives.’’
In response to comments from across
the spectrum of stakeholders expressing
confusion about the safety risk
reduction program and seeking clarity
on the relationship between the safety
risk reduction program and SMS, FTA
has eliminated the proposed § 673.20 as
a standalone section, and has moved the
safety risk reduction program
requirements originally proposed under
§ 673.20 to other sections of the rule.
This reorganization better reflects how
the required safety risk reduction
program activities are carried out using
existing components of SMS.
Requirements that pertain to
establishing the safety risk reduction
program, general safety risk reduction
program elements, and setting safety
performance targets are now included in
§ 673.11, which identifies items that
transit agencies must include in their
ASPs. Requirements for carrying out the
safety risk reduction program using
SMS processes are in § 673.25, which
now addresses safety risk reduction
program requirements associated with
Safety Risk Management, and § 673.27,
which now includes safety risk
reduction program requirements
associated with Safety Assurance. By
moving these requirements into the
relevant SMS-related components of the
regulation, FTA provides clear
requirements for transit agencies to
leverage existing SMS processes to
support the safety risk reduction
program. FTA confirms that the safety
risk reduction program operates within
an SMS and not outside of it or in
conflict with it. Also in response to
comments, FTA has clarified the
requirements for large urbanized area
providers and their Safety Committees
to consider specific safety risk
mitigations, including when the agency
misses a safety performance target set by
the Safety Committee.
Further, in response to comments and
pursuant to statute, the final rule

PO 00000

Frm 00004

Fmt 4701

Sfmt 4700

requires transit agencies to include or
incorporate by reference into the ASP
any safety risk mitigations relating to
the safety risk reduction program that
are identified and recommended by a
large urbanized area provider’s Safety
Committee based on a safety risk
assessment. These requirements are
described in §§ 673.11(a)(7)(iv) and
673.25(d)(5). The Bipartisan
Infrastructure Law requires at 49 U.S.C.
5329(d)(1)(I) that the ASP must include
the safety risk reduction program, and
that the safety risk reduction program
must include mitigations, including (1)
measures to reduce visibility
impairments for bus operators that
contribute to accidents, including
retrofits to vehicles in revenue service
and specifications for future
procurements that reduce visibility
impairments; and (2) the deployment of
assault mitigation infrastructure and
technology on buses. Accordingly, the
statute requires the ASP to include these
mitigations. The Safety Committee is
tasked with identifying and
recommending safety risk mitigations
necessary to reduce the likelihood and
severity of consequences identified
through the agency’s safety risk
assessment. Therefore, as noted above,
FTA is including the requirement that
the ASP include safety risk mitigations
related to the safety risk reduction
program that are identified and
recommended by the Safety Committee
based on a safety risk assessment.
In response to comments,
§ 673.23(d)(1) clarifies the role of the
Accountable Executive regarding
implementation of mitigations
recommended by the Safety Committee.
The Accountable Executive must
implement safety risk mitigations for the
safety risk reduction program that are
included in the ASP under
§ 673.11(a)(7)(iv). Given that the
Accountable Executive has ultimate
responsibility for carrying out the
agency’s ASP pursuant to § 673.5, the
Accountable Executive is responsible
for carrying out any mitigations
included in the ASP.
In response to comments,
§ 673.23(d)(1) provides that the
Accountable Executive of a large
urbanized area provider receives and
must consider all other safety risk
mitigations (i.e., mitigations not related
to the safety risk reduction program)
that are recommended by the Safety
Committee. As described in
§ 673.25(d)(6), if the Accountable
Executive declines to implement such a
mitigation, the Accountable Executive
must prepare a written statement
explaining its decision and must submit
and present this explanation to the

E:\FR\FM\11APR2.SGM

11APR2

25697

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
Safety Committee and the Board of
Directors.
D. Benefits and Costs
Most provisions in the final rule
implement self-enacting statutory
amendments made by the Bipartisan
Infrastructure Law to 49 U.S.C. 5329,
although some provisions are
discretionary. The discretionary
provisions include extending the deescalation training requirement to all
transit agencies subject to part 673, as
well as requiring small public
transportation providers to establish
continuous improvement processes.
The requirements for de-escalation
training and continuous improvement

processes are predicted to reduce the
risk of fatalities and injuries for transit
workers, passengers, drivers, and
pedestrians if transit agencies adopt
safety risk mitigations that they would
not have adopted otherwise. While FTA
expects that agencies will be more likely
to adopt safety risk mitigations to
reduce the risk of transit worker assault
and bus collisions, it does not have
information to quantify or monetize
potential benefits.
Agencies will incur costs to meet the
requirements for de-escalation training
and continuous improvement processes.
FTA will also incur costs to notify
agencies, update technical assistance

resources, and conduct training,
although the expected costs are
minimal.
Table 1 summarizes the economic
effects of the discretionary provisions in
the final rule over the first ten years
from 2024 to 2033 in 2021 dollars,
assuming an effective date of 2024. On
an annualized basis (discounted to
2023), the rule has estimated costs of
$642,000 at a 3 percent discount rate
and $635,000 at 7 percent. To quantify
benefits and assess net benefits, FTA
would need information on the specific
safety interventions transit agencies
would adopt to address the
requirements.

TABLE 1—SUMMARY OF ECONOMIC EFFECTS FOR DISCRETIONARY RULEMAKING PROVISIONS, 2024–2033
[$2021, discounted to 2023]
Total
(undiscounted)

khammond on DSKJM1Z7X2PROD with RULES2

Item

Annualized
(3% discount)

Annualized
(7% discount)

Benefits ................................................................................................................................
Costs:
De-escalation training ...................................................................................................
Continuous improvement processes ............................................................................

Unquantified

..........................

..........................

$584,925
$5,881,933

$59,040
582,913

$59,803
575,558

Total costs .............................................................................................................
Net benefits ...........................................................................................................

$6,466,858
Unquantified

641,954
..........................

635,362
..........................

II. Notice of Proposed Rulemaking and
Response to Comments
FTA issued an NPRM for Public
Transportation Agency Safety Plans on
April 26, 2023 (88 FR 25336).18 The
public comment period for the NPRM
closed on June 26, 2023. FTA received
53 comment submissions to the
rulemaking docket, including one that
contained individual comments from 26
local transit unions. Commenters
included States, members of Congress,
transit agencies, labor organizations,
trade associations, and individuals. FTA
also received comments relevant to this
rulemaking through the National Safety
Plan docket (FTA–2023–0010). FTA has
considered these comments and
addresses them in the corresponding
sections below. FTA also received ex
parte comments about the rulemaking,
which are summarized in the
rulemaking docket. FTA addresses these
comments in the corresponding sections
below. Some comments were outside
the scope of this rulemaking, and FTA
does not respond to comments in this
final rule that were outside the scope.
Some comments expressed support for
the NPRM without advocating for
specific changes, and FTA
18 Public Transportation Agency Safety Plans, 88
FR 25336 (April 26, 2023). https://www.federal
register.gov/documents/2023/04/26/2023-08777/
public-transportation-agency-safety-plans.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

acknowledges those comments were
received and considered.
FTA reviewed all relevant comments
and took them into consideration when
developing the final rule. Below, the
NPRM comments and responses are
subdivided by their corresponding
sections of the proposed rule and
subject matter.
A. Section 673.1—Applicability
1. Funding Sources
Comments: Two commenters
supported FTA’s proposal to continue
existing exemptions for operators of
public transportation systems that
receive only Federal financial assistance
under 49 U.S.C. 5310 or 49 U.S.C. 5311.
One commenter requested additional
clarification on applicability for
operators who cease to meet the
applicability criteria in § 673.1 but
already have an ASP in place due to
prior applicability.
One commenter recommended that
applicability, particularly the
requirement to create Safety
Committees, should include operators
that do not receive section 5307
funding, but that receive other funds or
subsidy credit from a section 5307
recipient.
Response: FTA appreciates the
comments that it received supporting
the proposed revisions to the

PO 00000

Frm 00005

Fmt 4701

Sfmt 4700

applicability section of this rule. As
described in the NPRM, these revisions
clarify FTA’s existing practice regarding
PTASP applicability. Accordingly, FTA
will continue to defer regulatory action
regarding the applicability of this
regulation to operators of public
transportation systems that only receive
section 5310 and/or section 5311 funds.
This final rule does not apply to an
operator of a public transportation
system that receives Federal financial
assistance under only 49 U.S.C. 5310, 49
U.S.C. 5311, or both 49 U.S.C. 5310 and
49 U.S.C. 5311, unless it operates a rail
fixed guideway public transportation
system.
FTA disagrees with the need to
further clarify applicability for operators
whose funding sources change. For nonrail fixed guideway public
transportation systems, the final
regulation applies only to operators that
are recipients or subrecipients of
Urbanized Area Formula Funding
(section 5307) funds.
Similarly, FTA disagrees with the
commenter who suggested that
operators of public transportation
systems who do not receive section
5307 funds but receive other types of
funds or subsidies from a section 5307
recipient should automatically be
required to meet the requirements of the
regulation. FTA continues to apply the

E:\FR\FM\11APR2.SGM

11APR2

25698

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

existing definitions of recipient and
subrecipient. Accordingly, if a transit
agency is a recipient or subrecipient of
section 5307 funding, this regulation
applies. The final rule does not change
any existing PTASP requirements
regarding applicability.
2. Publication Timing
Comments: One commenter
recommended that FTA publish its final
rules for part 673, part 674, and the
updated National Safety Plan
simultaneously in order to ensure
consistency across programs and that
safety performance targets under part
673 are consistent with the performance
measures set forth in the revised
National Safety Plan.
Response: FTA appreciates the
commenter’s concern regarding the
sequencing of publications, including
for part 673 and the National Public
Transportation Safety Plan (National
Safety Plan).19 FTA’s National Safety
Plan defines safety performance
measures that transit agencies use to set
the performance targets required under
part 673. FTA has ensured consistency
between this final rule and the National
Safety Plan, and FTA believes that both
updates support the advancement of
safety performance measurement by
providing transit agencies what they
need to set safety performance targets.
FTA also understands the concern
regarding the importance of consistency
across FTA’s safety program. FTA will
take this into consideration and ensure
consistency across parts as it develops
its rulemaking for part 674, but due to
rulemaking requirements, schedules,
and resources, FTA is unable to publish
both rulemakings simultaneously.

khammond on DSKJM1Z7X2PROD with RULES2

3. Modal Requirements
Comments: A rail transit agency
(RTA) requested greater differentiation
among requirements for specific types of
rail fixed guideway public
transportation systems (RFGPTS), such
as streetcar and light rail systems.
Response: FTA appreciates the
functional differences among types of
RFGPTS and agrees that regulatory
requirements should reflect those key
differences as appropriate. FTA notes
that this regulation is based on the
principles of SMS, which are scalable
and flexible for public transportation
operators of varying types and sizes.
FTA therefore disagrees that
requirements relating to RFGPTS in this
final rule are significantly impacted by
the type of RFGPTS in operation.
19 Federal Transit Administration (April 2024).
‘‘National Public Transportation Safety Plan.’’
https://www.transit.dot.gov/nsp.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

The National Safety Plan establishes
safety performance measures for all
modes of transportation. This directly
reflects statutory language in 49 U.S.C.
5329(b)(2)(A), which requires FTA to set
safety performance criteria in the
National Safety Plan by mode. FTA
notes that nothing in this final rule or
in the National Safety Plan prevents a
transit agency from establishing
additional safety performance targets
with greater specificity than required in
the National Safety Plan (e.g.,
establishing separate safety performance
targets for streetcar and light rail
systems).
B. Section 673.5—Definitions
1. General
Comments: A few commenters
expressed concern with the potential for
conflicting definitions across FTA’s
regulatory framework and associated
requirements, with some urging FTA to
ensure terms are consistent across FTA’s
safety regulations and the NTD. Another
of these commenters recommended that
FTA restate definitions within the rule
rather than referencing statutory or
regulatory provisions.
Two commenters expressed support
for FTA’s proposed definitions, with
one specifically noting support for the
revised definitions of ‘‘small public
transportation provider’’ and ‘‘assault
on a transit worker.’’
One commenter stated that changing
or deleting definitions would have a
significant impact on training materials
and expressed concern with the cost of
updating these materials.
One commenter expressed concern
that the provided definitions lack the
specificity required to address safety
concerns in ASPs that are manageable
and effective. They also stated that any
new definitions should be congruent
with State and local statutes.
Response: FTA agrees that consistent
definitions and requirements are
important across its safety program and
associated regulatory framework. FTA
has taken such consistency into
consideration in finalizing this final rule
and the National Safety Plan, and will
standardize relevant definitions in part
674, the forthcoming Roadway Worker
Protection rulemaking, and NTD
reporting requirements. In response to
the commenter that recommended FTA
restate definitions within the rule rather
than referencing statutory or regulatory
provisions, FTA notes that referencing
statutory or other regulatory provisions
ensures consistency and avoids conflicts
in instances where associated statutes or
regulations are revised. In most
instances, FTA has chosen to reference

PO 00000

Frm 00006

Fmt 4701

Sfmt 4700

statutory or regulatory provisions,
except when FTA believes that restating
the definition is necessary for clarity, as
it has done for the definition of ‘‘assault
on a transit worker.’’
FTA appreciates the support received
regarding the definitions of ‘‘small
public transportation provider’’ and
‘‘assault on a transit worker.’’
FTA acknowledges that, as with any
regulatory update, the definitional
changes adopted in this final rule may
necessitate an update of training
materials to address these changes. FTA
will aim to provide guidance and other
technical assistance regarding the
changes adopted in this rule to assist
agencies with understanding and
adapting to them.
FTA appreciates the commenter’s
concern regarding the specificity of
definitions in this rule and how FTA’s
definitions may differ from State or
local statutes. The definitions
introduced here are designed to be
sufficiently specific to facilitate
compliance without being so restrictive
that they interfere with an agency’s
ability to appropriately scale their SMS
to the size and complexity of their
transit system. Further, it is not feasible
for FTA to accommodate all potential
State and local statutory definitions in
this rulemaking. FTA therefore declines
to make any changes in response to this
comment.
2. Accountable Executive
Comments: Three commenters
recommended that FTA revise the
definition of ‘‘Accountable Executive’’
to express that the Accountable
Executive has ultimate accountability
for and authority over the Agency Safety
Plan (ASP), including veto power over
anything contained in the ASP. One
commenter recommended that FTA
specify that the Accountable Executive
must have transit mode and safety
qualifications.
Response: FTA declines to revise the
definition. The Accountable Executive’s
ultimate accountability for the agency’s
safety performance, which includes
execution of the ASP, is affirmed in
§ 673.23(d)(1). As explained in Section
II.F.5. of this preamble, the rule does not
establish Accountable Executive veto
power over the contents of the ASP. The
Accountable Executive’s role is to sign
the ASP and to ensure that the ASP and
the agency’s SMS process is carried out.
FTA declines to establish specific
qualifications for Accountable
Executives because the rule clearly
defines the responsibilities of the
Accountable Executive. Transit agencies
will ultimately define the qualifications

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

khammond on DSKJM1Z7X2PROD with RULES2

required for their Accountable
Executive.
3. Assault on a Transit Worker
Comments: Seven commenters
expressed concerns about the breadth of
the definition of ‘‘assault on a transit
worker.’’ Two of these commenters
requested that FTA narrow the
definition to physical assaults. They
stated that, by collecting non-violent
offenses, FTA could skew the data and
make it more difficult for agencies to
address these assaults. For this reason,
the same commenters recommended
FTA limit the definition’s applicability
to NTD reporting. Another of these
commenters stated that, by
characterizing verbal abuse as an
assault, transit agencies could
experience an increase in applications
for workers’ compensation. One
commenter requested clarification and
coordination between this definition
and the definition of ‘‘non-physical
assault’’ in the NTD.
One of the commenters requested
additional guidance on the definition’s
use of the terms ‘‘knowingly,’’ ‘‘with
intent,’’ and ‘‘interferes with’’ due to
concerns about the difficulty of
applying these factors in some
situations. Similarly, four commenters
requested that FTA provide guidance on
the types of events that constitute an
assault on a transit worker. Two of these
commenters recommended that FTA
provide examples either in the final rule
or in NTD guidance materials. One of
these commenters requested that FTA
implement a ‘‘grace period’’ for NTD
assault reporting requirements and
PTASP safety risk reduction program
performance measures until FTA
develops clear guidance on the
application of the term. This commenter
expressed that the definition is
ambiguous and leads to undue
administrative burden.
Five commenters stated that the
definition of assault used in this rule is
not congruent with state criminal
statutes, noting that this will create
confusion and uncertainty about its
application. One of these commenters
further questioned why this definition
was created when prosecution for
assaults on transit workers is generally
conducted at a local, not a Federal, level
and suggested that these assaults should
be tracked by the Transportation
Security Administration (TSA) instead.
Another commenter suggested that FTA
consider using a different word than
‘‘assault’’ due to differences with state
statutory definitions.
One commenter stated that the
definition of assault varies, even within
one transit agency, which leads to

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

administrative burden and confusion for
an agency’s safety, dispatch, and law
enforcement personnel. The same
commenter stated the incongruity
between the rule and the state criminal
statutory definition may lead law
enforcement to mistakenly direct
dispatchers not to report an assault as
defined by FTA.
One commenter asked whether
assaults on a transit worker should be
considered safety or security events.
Response: FTA notes that 49 U.S.C.
5329(d) explicitly uses the term ‘‘assault
on a transit worker,’’ as defined by 49
U.S.C. 5302, when setting forth certain
PTASP requirements. For this reason,
FTA is adopting the statutory definition
verbatim. The statutory definition does
not exclude non-physical assaults,
verbal assaults, or non-violent assaults.
As such, FTA declines to exclude these
events from the definition.
FTA acknowledges that the collection
of non-physical assault events may
increase the assault on transit worker
data that transit agencies collect. FTA
notes that the NTD has initiated the
collection of non-physical assaults on
transit workers data and that this rule
utilizes the same definition of assault on
a transit worker used by the NTD. This
definitional alignment provides
important consistency across the PTASP
and NTD programs.
FTA appreciates the comments
requesting additional guidance from
FTA about the definition of ‘‘assault on
a transit worker’’ and how it should be
applied. The NTD program serves as
FTA’s system for collection of assaults
on transit worker reporting
requirements. FTA communicates
reporting requirements to the NTD
reporting community through (1) annual
messaging around updates to reporting
requirements, (2) regular
communications with reporters (both
through the system’s blast messaging
and between the reporter and their
assigned validation analyst), (3) an
updated FAQ section 20 on the FTA
website specific to assaults on transit
workers, and (4) updates to guidance
and training. The NTD program has
developed several training opportunities
and guidance materials to help agencies
address the new assaults on transit
worker reporting requirements. The
2023 NTD Safety and Security Reporting
Policy Manual 21 provides detailed
20 Federal Transit Administration (October 2023).
‘‘Recent NTD Developments—Frequently Asked
Questions.’’ https://www.transit.dot.gov/ntd/recentntd-developments-frequently-asked-questions.
21 Federal Transit Administration (August 2023).
‘‘2023 NTD Safety and Security Reporting Policy
Manual.’’ https://www.transit.dot.gov/ntd/2023-ntdsafety-and-security-reporting-policy-manual.

PO 00000

Frm 00007

Fmt 4701

Sfmt 4700

25699

guidance about safety and security
reporting, including assaults on transit
workers. In addition, the 2023 Safety
and Security Quick Reference Guide:
Rail Modes 22 and Safety and Security
Quick Reference Guide: Non-Rail
Modes 23 define reportable events and
identify reporting thresholds. A webinar
on 2023 Safety & Security Updates:
Reporting Assaults on Transit
Workers,24 was provided to the public
on April 27, 2023, and is available for
viewing online. Finally, there are
several courses offered by the National
Transit Institute pertaining to 2023
safety reporting for full reporters (rail 25
and non-rail 26) as well as reduced
reporters.27
FTA disagrees that a ‘‘grace period’’
for safety risk reduction program
performance measures and reporting
assaults on transit workers to the NTD
is necessary and notes that the NTD has
already begun collecting data on
assaults on transit workers from the
transit industry.
Regarding concerns about
inconsistencies with the State law
definitions of ‘‘assault,’’ FTA’s proposed
definition of ‘‘assault on a transit
worker’’ is the same as the Federal
statutory definition at 49 U.S.C. 5302.
Although this definition potentially
differs from State law and from transit
agency definitions, FTA is adopting this
definition to ensure the definition used
for the purposes of this rule is
consistent with the statute.
FTA appreciates that some transit
agencies treat assault on a transit worker
as both a safety and a security event.
Congress directed FTA to address
assaults on transit workers through both
the NTD and FTA’s safety program as
part of FTA’s work to improve safety at
transit systems across the country. This
final rule carries out the Congressional
22 Federal Transit Administration (August 2023).
‘‘Safety & Security Quick Reference Guide: Rail
Modes.’’ https://www.transit.dot.gov/ntd/safetysecurity-quick-reference-guides.
23 Federal Transit Administration (August 2023).
‘‘Safety & Security Quick Reference Guide: Non-Rail
Modes.’’ https://www.transit.dot.gov/ntd/safetysecurity-quick-reference-guide-non-rail-modes.
24 National Transit Institute (April 2023).
‘‘Webinar: NTD Safety Reporting Requirements
Update: Assaults on Transit Workers.’’ https://
www.youtube.com/watch?v=GeB3RXCl6oQ.
25 National Transit Institute. ‘‘National Transit
Database: Urban Safety & Security Reporting Rail
Modes.’’ https://www.ntionline.com/nationaltransit-database-urban-safety-security-rail/.
26 National Transit Institute. ‘‘National Transit
Database: Urban Safety & Security Reporting NonRail Modes.’’ https://www.ntionline.com/nationaltransit-database-urban-safety-and-securityreporting-non-rail-modes/.
27 National Transit Institute. ‘‘National Transit
Database: Rural NTD Reporting.’’ https://
www.ntionline.com/rural-ntd-reporting/.

E:\FR\FM\11APR2.SGM

11APR2

25700

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

mandate to address assaults on transit
workers through the PTASP regulation.
FTA is adopting this definition as
proposed.
4. Chief Safety Officer
Comments: One commenter requested
that FTA revise the definition of ‘‘Chief
Safety Officer’’ to remove the phrase
‘‘adequately trained individual’’ and
instead require the Chief Safety Officer
have transit modal and safety
competencies, credentials, training, and
experience.
Response: FTA declines to revise the
definition and does not have discretion
to remove the requirement for the Chief
Safety Officer to be ‘‘adequately
trained,’’ as it is required by statute at
49 U.S.C. 5329(d)(1)(G). FTA believes
that the transit agency is the entity best
situated to define adequate training. For
operators of RFGPTS, the relevant SSOA
may establish additional training
requirements.

khammond on DSKJM1Z7X2PROD with RULES2

5. Emergency
Comments: Two commenters
disagreed with the proposed definition
of ‘‘emergency’’ and expressed concern
that the definition may lead to
confusion because the term
‘‘emergency’’ is commonly used to
include incidents outside the scope of
the proposed definition (e.g., medical
emergencies). One of these commenters
noted that FTA’s proposed definition is
similar to an ‘‘Act of God’’ and
recommended that if this is the intent,
FTA should utilize the Federal
Emergency Management Agency
(FEMA) definition of ‘‘emergency.’’
Response: FTA agrees that the term
‘‘emergency’’ may have definitions other
than the one presented in the NPRM.
The definition used in the NPRM
mirrors the statutory definition in 49
U.S.C. 5324 and its use in this final rule
synchronizes definitions within FTA’s
programs. Further, FTA believes this
definition is appropriate for purposes of
establishing the minimum required
scope of the emergency preparedness
and response plan or procedures
required in § 673.11(a)(6)(i). FTA notes
that transit agencies are free to develop
emergency preparedness and response
plans or procedures that cover a broader
set of situations.
6. Equivalent Entity
Comments: One commenter requested
more information about the use of the
term ‘‘equivalent entity’’ and how it
relates to the term ‘‘Equivalent
Authority.’’
Response: The term ‘‘equivalent
entity’’ is used in this final regulation as
a one-to-one replacement for the term

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

‘‘Equivalent Authority.’’ FTA made this
change to conform with the statutory
term used in 49 U.S.C. 5329(d)(1)(A).
FTA does not intend this change to be
substantive.
7. Hazard
Comments: One commenter requested
clarification on the difference between a
safety hazard and a hazard.
Response: FTA uses these two terms
interchangeably. There is no substantive
difference between FTA’s use of these
terms. For clarity, FTA has revised the
rule to use ‘‘hazard’’ in place of ‘‘safety
hazard.’’
8. Investigation
Comments: One transit agency stated
that the definition of ‘‘investigation’’
implies that an investigation would only
occur after a safety event has occurred
and asked whether the definition also
includes near-miss or close-call
incidents. Further, the commenter
recommended an alternative definition
that includes near-misses and that states
that investigations may serve the
purpose of preventing the occurrence of
potential consequences, rather than
merely their recurrence.
Response: In both the NPRM and this
final rule, FTA includes both hazards
and safety events in its definition of
‘‘investigation.’’ The definition does not
exclude investigations of hazards that
may have resulted in a near-miss.
9. Joint Labor-Management Process
Comments: One commenter suggested
that FTA should revise the definition of
‘‘joint labor-management process’’ to
mean the formal approach for
conducting the responsibilities of the
Safety Committee established under 49
U.S.C. 5329(d). Another commenter
opposed defining this term as a process
to ‘‘discuss topics,’’ stating that
establishing a Safety Committee consists
of more than just discussion. In
addition, this commenter requested that
FTA include a requirement for workers
and management to make democratic
decisions and for agencies to
incorporate the committee’s structure
and rules into ASPs.
Response: The term ‘‘joint labormanagement process’’ is used only in
§ 673.19(a), which sets forth the
responsibilities for a Safety Committee
established in 49 U.S.C. 5329. Because
of this limited usage, FTA does not
believe it is necessary to further address
the Safety Committee in the definition
of ‘‘joint labor-management process.’’
FTA agrees with the commenter that
establishing and operating a Safety
Committee consists of more than just
discussion. FTA does not believe the

PO 00000

Frm 00008

Fmt 4701

Sfmt 4700

definition of ‘‘joint labor-management
process’’ limits the role of the Safety
Committee. FTA notes that § 673.19
defines the Safety Committee
requirements and responsibilities,
including requirements directly related
to establishment, membership,
procedures, and ASP approval. Further,
FTA specifically addresses Safety
Committee decision-making at
§ 673.19(c)(6). FTA refers readers to
section II.F. of this preamble below for
additional discussion about Safety
Committee procedures and decisionmaking. As such, FTA declines to revise
the definition of ‘‘joint labormanagement process.’’
10. Near-Miss
Comments: Two commenters stated
that FTA should not use the word
‘‘narrowly’’ in its definition of ‘‘nearmiss,’’ as each transit agency may
interpret that word differently. One
commenter also noted that transit
agencies typically define ‘‘near-miss’’
differently in the bus and rail contexts
and requested that the definition clarify
this. Four commenters provided
alternative language for inclusion in the
definition to narrow its scope,
expressing concern that FTA’s language
is too broad and does not align with
how some transit agencies categorize
near-miss incidents. One commenter
requested that FTA either clarify the
types of narrowly avoided safety events
captured in the definition of ‘‘nearmiss’’ or alternatively, delete the
definition. Another commenter
recommended FTA ensure ‘‘near-miss’’
is defined the same way in State Safety
Oversight (SSO) Program guidance so
that all SSOAs interpret the term
consistently.
Response: FTA appreciates the
comments regarding the definition of
‘‘near-miss’’ and has thoroughly
considered each suggestion. FTA
acknowledges that transit agencies may
interpret the word ‘‘narrowly’’
differently. However, FTA disagrees that
defining or removing ‘‘narrowly’’ from
the definition of ‘‘near-miss’’ is
appropriate. FTA believes that it is
important to give transit agencies
flexibility to have different definitions
of ‘‘narrowly’’ as it pertains to nearmisses depending on the kind of
narrowly avoided event. For example,
an agency may decide that ‘‘narrowly’’
has a broader definition when
identifying near-misses between transit
vehicles and pedestrians than it does
when identifying low-speed transit
vehicle to transit vehicle collisionrelated near-misses in the yard.
FTA disagrees that the definition of
‘‘near-miss’’ is insufficient. Any safety

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
event, also defined in this rule, that is
narrowly avoided is considered a ‘‘nearmiss’’ under this definition. FTA
acknowledges the comments
recommending that FTA narrow the
scope of the ‘‘near-miss’’ definition
because it does not align with how some
commenters currently categorize nearmiss incidents or because it does not
sufficiently distinguish application
within rail and bus operating
environments. FTA does not believe it
should revise the definition to narrow
the scope or specify mode-specific
applications. As noted previously, the
term as defined in the final rule offers
transit agencies flexibility. As written,
transit agencies have the flexibility to
apply the definition based on their
operating environments.
Further, FTA notes that the term
‘‘near-miss’’ is used only at § 673.23(b)
where FTA identifies types of safety
concerns that workers should be able to
report through a transit worker safety
reporting program. FTA disagrees with
revising the definition, as it may limit
the concerns that transit workers report
through a transit worker safety reporting
program. FTA may consider providing
examples through technical assistance.
While application of the term may vary
across transit applications, FTA believes
the term as defined is valid and useful.
Finally, FTA appreciates the comment
recommending consistency with SSO
Program guidance. FTA will consider
this recommendation when finalizing 49
CFR part 674.
11. Performance Target/Safety
Performance Target
Comment: An SSOA commenter
requested that FTA clarify the difference
between ‘‘performance target’’ and
‘‘safety performance target’’ and
questioned whether both definitions are
necessary. This commenter also
requested that, for clarity, FTA revise
the definition of ‘‘safety performance
target’’ to combine elements of both
definitions.
Response: FTA agrees with the
commenter and has deleted the
definition of ‘‘performance target’’ and
revised the definition of ‘‘safety
performance target’’ to combine
elements of both definitions.

khammond on DSKJM1Z7X2PROD with RULES2

12. Potential Consequence
Comments: Two commenters
requested additional language clarifying
the definition of ‘‘potential
consequence.’’
Another commenter expressed
confusion about the word ‘‘potential’’
and asked for clarification as to whether
the definition refers to outcomes.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Response: FTA appreciates the
request for additional language but
believes that the term ‘‘potential
consequence’’ is sufficient as defined in
this rule as the effect (or outcome) of a
hazard. FTA will consider technical
assistance in the future on this subject.
13. Rail Fixed Guideway Public
Transportation Systems
Comment: One commenter expressed
concern that the definition of ‘‘Rail
Fixed Guideway Public Transportation
System’’ conflicts with the definition of
‘‘fixed guideway’’ in 49 U.S.C. 5302.
The commenter requested that FTA add
a definition of ‘‘fixed guideway’’ that
includes bus rapid transit and people
mover systems, and asked FTA to clarify
whether overhead fixed catenary and
passenger ferry systems are covered by
the definition.
Response: The definition of ‘‘Rail
Fixed Guideway Public Transportation
System’’ is explicitly limited to fixed
guideway systems that use rail and are
under the jurisdiction of an SSOA (see
49 U.S.C. 5329(e)). The only revision
that FTA proposed to this definition
was to clarify existing language
regarding systems in engineering or
construction. This is a non-substantive
revision that does not change
applicability. Further, the addition of
the term ‘‘public transportation’’ to
§ 673.5 does not change the
applicability of the term ‘‘rail fixed
guideway public transportation
system.’’
Because the definition of ‘‘Rail Fixed
Guideway Public Transportation
System’’ is limited to rail, FTA believes
it is not necessary to clarify that
passenger ferry systems and other nonrail modes are excluded from the
definition. The definition does not
conflict with the definition of ‘‘fixed
guideway’’ in 49 U.S.C. 5302. Therefore,
FTA declines to add a definition of
‘‘fixed guideway’’ that includes bus
rapid transit and people mover systems.
14. Roadway
Comments: Four commenters stated
that the definition of ‘‘roadway’’ could
be confusing, with one noting that the
definition obstructs the meaning of
roadway worker protections for systems
with shared rights-of-way. Two of these
commenters recommended that FTA use
the term ‘‘right-of-way’’ to refer to the
area rail tracks occupy. Commenters
noted that ‘‘roadway’’ is commonly
understood to mean asphalt paved
surfaces for rubber tire vehicles. A
separate commenter recommended that
FTA include definitions for both the
terms ‘‘roadway’’ and ‘‘right-of-way’’ in
the definitions section of the regulation.

PO 00000

Frm 00009

Fmt 4701

Sfmt 4700

25701

One of these commenters stated the
definition was too narrow and
conflicted with other definitions for the
term ‘‘roadway’’ such as the one used in
Federal Highway Administration’s
Manual on Uniform Traffic Control
Devices.
One commenter requested
clarification regarding whether the term
includes busways that operate on their
own right-of-way. The same commenter
also asked whether this term included
RTA maintenance facilities through
which trains can move.
Response: FTA appreciates the stated
concerns regarding the term ‘‘roadway’’
and notes that this is the term used in
the Federal Railroad Administration’s
regulations and guidance. For
consistency across passenger rail
operations, FTA has determined that it
is best to define and use this term
similarly. It therefore declines to use a
different term such as ‘‘right-of-way.’’
The term defined in this final rule
means any land on which rail transit
tracks and support infrastructure have
been constructed, excluding station
platforms. This means that ‘‘roadway’’
includes rail transit tracks and support
infrastructure used in revenue service
and rail transit tracks and support
infrastructure used in non-revenue
service, such as yards and sidings. In
this final rule, the term is only used in
the rail context. As such, FTA declines
to use the definition of ‘‘roadway’’
found in the Manual on Uniform Traffic
Control Devices 28 and does not include
busways in the final rule’s definition of
‘‘roadway.’’
15. Safety Event
Comments: Seventeen commenters,
including transit agencies, SSOAs, and
transit industry associations, expressed
concern regarding FTA’s proposal to
replace the terms ‘‘accident,’’
‘‘incident,’’ ‘‘occurrence,’’ ‘‘event,’’ and
‘‘serious injury’’ with the term ‘‘safety
event.’’ Commenters noted that all these
terms have wide-ranging impacts and
unique definitions across various
programs, including drug testing
thresholds, NTD reporting, accident
investigation thresholds, and safety
training programs.
Several commenters explicitly
opposed the proposal. Four commenters
stated that the definition is overly broad
and should be more narrowly defined.
One of these commenters expressed that
the definition of ‘‘safety event’’ creates
too broad of a scope for the safety risk
28 Federal Highway Administration (July 2022).
‘‘Manual on Uniform Traffic Control Devices for
Streets and Highways.’’ https://mutcd.fhwa.dot.gov/
pdfs/2009r1r2r3/pdf_index.htm.

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

25702

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

reduction program and would result in
differing interpretations of that program.
Four commenters were SSOAs that
stated removal of those terms would
change the threshold for investigation
and require investigations into an overly
broad set of circumstances. One of these
commenters expressed particular
concern that the change would result in
investigations of ‘‘damage to the
environment.’’ Another of these
commenters expressed that creating a
generalized ‘‘safety event’’ category is
confusing, and that FTA should
consider the downstream effects of this
change on SSO programs that rely on
previous definitions. A participant at an
FTA webinar asked whether this
proposal would impact the accident
investigation and SSOA reportable
event thresholds. One RTA commenter
requested clarification of what transit
agencies will be expected to report
within two hours.
Twelve commenters expressed
concern that the proposed definition
would cause inconsistency with the
current definitions in 49 CFR part 674
and the NTD. One of these commenters
requested clarification as to whether the
new definition would change the NTD
reporting requirements and FTA’s
severity determinations.
Some noted that this proposal creates
a different investigation threshold for
rail transit systems subject to part 674,
and bus systems that are not subject to
that regulation. One commenter asked
whether the change implies that FTA
intends to incorporate bus modes into
part 674, or whether FTA will make a
similar change to part 674 for rail
modes. This commenter questioned
what improvements these changes
would achieve. Several commenters
recommended that, if FTA adopts the
proposal, it should establish consistent
definitions and thresholds across FTA’s
programs.
Some commenters requested changes
to FTA’s proposed definition of ‘‘safety
event.’’ One SSOA commenter
suggested FTA include the phrase
‘‘assault on a transit worker’’ in its
definition to ensure that such assaults
require investigation. One commenter
requested that FTA replace the word
‘‘unexpected’’ with ‘‘undesired.’’
Another commentor recommended FTA
remove the word ‘‘unexpected’’ and
replace ‘‘outcome’’ with ‘‘incident’’ in
the definition. This commenter noted
that injury and death are expected
outcomes of certain incidents, such as
subway surfing.
One transit agency supported the
proposal but recommended that FTA
restrict SSOAs from developing their

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

own definitions for ‘‘injury’’ and
‘‘serious injury.’’
Response: FTA appreciates the stated
concerns but disagrees that the term
‘‘safety event’’ is inappropriately broad
for this rule. Further, while the July
2018 PTASP rule included definitions
for these terms, neither that rule nor this
final rule use the terms ‘‘accident,’’
‘‘incident,’’ or ‘‘occurrence’’ as key
terms in the rule. FTA notes that the
definition provided in part 673 is
intended to be general in nature and is
not intended to define concrete
thresholds for notification, reporting, or
investigation. Rather, the definition of
‘‘safety event’’ allows FTA to identify
the types of events that a transit
agency’s SMS should address. FTA,
therefore, is adopting the definition of
‘‘safety event’’ in this rule as proposed
in the NPRM.
Further, FTA does not believe that the
definition results in an overly broad
scope for the safety risk reduction
program. The definition of ‘‘safety
event’’ in this final rule does not define
the safety performance measures
required for the safety risk reduction
program. Rather, FTA defines specific
safety performance measures for the
purposes of the safety performance
target setting requirements of
§§ 673.11(a)(3) and 673.11(a)(7)(iii)
through the National Safety Plan. This
includes the safety performance
measures required of all transit agencies
and the safety performance measures
required for large urbanized area
providers for the safety risk reduction
program. This final rule does not define
those safety performance measures.
FTA appreciates the comments from
the four SSOAs that expressed concern
that the removal of the terms
‘‘accident,’’ ‘‘incident,’’ ‘‘occurrence,’’
and ‘‘serious injury’’ from part 673
could impact the SSOA investigation
thresholds by requiring investigation of
an overly broad set of circumstances,
including damage to the environment.
Further, FTA appreciates SSOA
commenters urging consideration of the
downstream impacts of such changes.
FTA has thoroughly reviewed the effects
of the changes issued through this final
rule and confirms that the definition of
‘‘safety event’’ does not change any
SSOA investigation requirement
established by part 674.
FTA notes that part 673 does not
establish a two-hour notification
requirement. The existing two-hour
notification requirement referenced by
the commenter is established by part
674, and any changes to that
requirement would be executed through
a rulemaking amending part 674.

PO 00000

Frm 00010

Fmt 4701

Sfmt 4700

FTA also appreciates the commenters
that expressed concern that the
proposed definition of ‘‘safety event,’’
coupled with the removal of the terms
‘‘accident,’’ ‘‘incident,’’ ‘‘occurrence,’’
and ‘‘serious injury,’’ could cause
inconsistency with the current
definitions in part 674 and the NTD.
FTA again notes that the removal of
these definitions from part 673 does not
change any existing SSO Program
investigation threshold or requirement
established in part 674 or any existing
NTD reporting requirements, nor do
these changes conflict with either
program.
FTA acknowledges and agrees with
commenters who recommended FTA
should establish consistent definitions
across FTA’s programs, including in the
bus and rail contexts. FTA continues to
ensure synchronization of definitions
across programs where appropriate to
support the use of thresholds to trigger
specific program activity.
FTA carefully considered
commenters’ suggested changes to the
definition of ‘‘safety event,’’ including
the recommendation to add the phrase
‘‘assault on a transit worker’’ to ensure
that such assaults require investigation.
FTA again notes that the ‘‘safety event’’
definition provided in part 673 is
intended to be general in nature and is
not intended to define concrete
thresholds for notification, reporting, or
investigation. FTA also considered the
suggestions to replace the word
‘‘unexpected’’ with ‘‘undesired’’ and to
remove the word ‘‘unexpected.’’ FTA
declines to make either of these
suggested revisions as the word
‘‘unexpected’’ is used to distinguish
planned outcomes from unexpected
outcomes. FTA appreciates the
commenter’s example of subway surfing
but believes that subway surfing is an
unexpected outcome. While injuries and
fatalities are likely to result from these
events, the safety event itself is
unexpected. FTA also considered the
suggestion to replace ‘‘outcome’’ with
‘‘incident,’’ but declines to adopt this
change. The addition of the term
‘‘incident’’ may cause confusion based
on its previous definition within part
673 and its current definition within
part 674.
FTA acknowledges the comment from
an RTA recommending that FTA restrict
SSOAs from developing their own
definitions for ‘‘injury’’ and ‘‘serious
injury.’’ FTA notes again that this final
rule does not impact any existing SSOA
investigation requirements established
in part 674. Further, part 673 would not
be the appropriate rule to establish any
SSO Program notification or
investigation-related requirement.

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
16. Safety Management System
Comments: Six commenters requested
that FTA not adopt its proposed
revision to the definition of ‘‘Safety
Management System.’’ Specifically, all
these commenters opposed FTA’s
proposed deletion of the word ‘‘topdown.’’ Commenters expressed that
‘‘top-down’’ is a foundational
component of SMS that is important for
improving safety, and that this word
reflects the Accountable Executive’s key
role in promoting and implementing
SMS from the very top of an
organization. Two commenters also
noted that this concept is included in
Transportation Safety Institute (TSI)
courses. One commenter asked FTA to
provide its rationale for this deletion
and expressed that the change will
negatively impact training materials and
management accountability.
Response: FTA appreciates the stated
concerns related to the change in
definition. Removing the term ‘‘topdown’’ does not change any of the
authorities, accountabilities, and
responsibilities of the Accountable
Executive, Chief Safety Officer or SMS
Executive, or agency leadership. FTA
notes that removal of this term is
intended to reflect the multi-directional
flow of information, which is intrinsic
to the function of an SMS. Transit
worker safety reporting program and
Safety Committees are examples of
multi-directional information flow
throughout the agency. FTA notes that
this change does not conflict with or
modify the related concepts covered in
existing TSI courses. FTA acknowledges
that changes in definitions may require
revision to existing training materials
that may have referenced the previous
definition but notes that this
definitional change does not impact
management accountability.
This final rule removes the term ‘‘topdown’’ from the definition, as proposed.

khammond on DSKJM1Z7X2PROD with RULES2

17. Safety Risk
Comments: FTA received two
comments on its proposed revision to
the definition of ‘‘safety risk.’’ One
commenter stated that the terms
‘‘predicted severity’’ and ‘‘potential
consequence’’ in the definition are
synonymous. This commenter suggested
an alternative definition for FTA’s
consideration. Another commenter
stated the proposed definition conflicts
with the one used in the TSI training
materials.
Response: FTA disagrees that these
two terms are synonymous. A ‘‘potential
consequence’’ is an effect or outcome,
whereas ‘‘predicted severity’’ is a
measure of how bad a potential

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

consequence could be as predicted by
the transit agency through safety risk
assessment. Further, as discussed
earlier, FTA acknowledges that changes
in definitions may require revision to
existing training materials that reference
a now outdated definition. FTA has
adopted the definition as proposed.
18. Safety Risk Mitigation
Comments: Two commenters
requested that FTA clarify the difference
between safety mitigation and safety
risk mitigation. Another commenter
stated the proposed definition conflicts
with the one used in the TSI training
materials.
Response: FTA did not intend for any
substantive difference between the two
terms. For clarity, FTA has replaced
instances of ‘‘safety mitigation’’ in this
final rule with ‘‘safety risk mitigation.’’
Again, FTA acknowledges that changes
in definitions may require revision to
existing training materials that reference
a now outdated definition but notes that
this is not a substantive change.
19. Transit Worker
Comments: Two commenters
expressed concern that the definition of
‘‘transit worker,’’ in conjunction with
the statutorily defined term ‘‘assault on
a transit worker,’’ will require transit
agencies to address more than just
assaults on transit operators. They
recommended that FTA either redefine
‘‘transit worker’’ or add a definition of
‘‘frontline transit worker’’ to narrow the
scope of individuals covered by the
‘‘assault on a transit worker’’
requirements. These commenters
expressed that FTA’s proposed
definition obscures data collection and
mitigation efforts for operator assaults.
One commenter inquired whether the
term ‘‘transit worker’’ includes a transit
agency’s administrative staff. Another
commenter requested clarification of the
term’s applicability to short-term
contract workers, such as individuals
hired to distribute surveys or
wayfinding support for a weekend
shutdown.
Response: FTA confirms that the
definition of ‘‘transit worker’’ is
intended to be broader than just vehicle
operators. The statutory definition of
‘‘assault on a transit worker’’ in 49
U.S.C. 5302 and the related
requirements in 49 U.S.C. 5329(d) are
not explicitly limited to transit
operators. FTA therefore understands
this term to be broad and include more
job descriptions than just ‘‘operator’’ or
‘‘frontline transit worker.’’ FTA also
notes that the definition adopted in this
final rule is the same as the NTD
definition, which provides important

PO 00000

Frm 00011

Fmt 4701

Sfmt 4700

25703

consistency across programs. The term
‘‘transit worker’’ does not exclude a
transit agency’s administrative staff.
Further, FTA confirms that the term
includes short-term contract workers.
FTA adopts the definition as proposed.
20. Additional Definitions
Comments: Several commenters
requested that FTA define additional
terms used in the regulation and
provided several terms for definition,
with one commenter requesting that
FTA define all relevant and subjective
terms. This commenter recommended
defining many common terms that are
used in the rule text, such as
‘‘appropriately,’’ ‘‘elements,’’
‘‘ineffective,’’ and ‘‘results.’’
One commenter urged FTA to define
the term ‘‘plurality’’ in § 673.5 to clarify
the Safety Committee formation
requirements. The commenter expressed
that the definition should communicate
that when multiple labor organizations
represent a transit system’s frontline
workers, the union with the largest
membership chooses the frontline
transit worker representatives for the
Safety Committee. This definition
would also clarify that when an agency
has a single union, the union chooses
the frontline transit worker
representatives regardless of the size of
the agency’s unrepresented workforce.
One commenter recommended FTA
include a definition for ‘‘frontline
transit worker.’’ One commenter
requested FTA define the term ‘‘State
Safety Oversight Program’’ and provided
a suggested definition that included
specific SSO Program requirements and
a citation to 49 U.S.C. 5329(e)(3).
Several commenters, including transit
agencies and an SSOA, stated that the
removal of the term ‘‘serious injury’’ left
transit agencies without a definition for
‘‘injury,’’ and two of these commenters
expressed concern with the lack of an
‘‘injury’’ definition related to required
safety performance measures.
Response: FTA agrees that this final
rule should define all relevant terms but
disagrees with including definitions for
all suggestions made by commenters. In
this rule, FTA balanced the need for
distinct definitions for key terms with
the need for flexibility inherent in an
SMS environment.
FTA does not believe it is necessary
to define commonly understood terms
in the rule. For example, the terms
‘‘appropriately,’’ ‘‘elements,’’
‘‘ineffective,’’ and ‘‘results,’’ among
others suggested by commenters, do not
need definitions to ensure
understanding of the rule. Similarly,
FTA does not believe it is necessary to
define the term ‘‘plurality’’ in § 673.5 as

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

25704

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

the commonly understood definition
would apply. Further, FTA has
addressed the elements of the
‘‘plurality’’ definition suggested by the
commenter through the Safety
Committee requirements established in
§ 673.19(b). FTA confirms that for
transit agencies with multiple labor
organizations, ‘‘plurality’’ refers to the
labor organization that represents the
largest number of the agency’s frontline
workforce. For transit agencies with
only one labor organization, that single
labor organization chooses frontline
transit worker representatives for the
Safety Committee regardless of the size
of the agency’s unrepresented
workforce.
FTA appreciates the comment
suggesting that FTA define ‘‘frontline
transit worker’’ in the rule. However,
FTA declines to establish a specific
definition for this term, to preserve
flexibility for transit agencies to apply
this term based on their organizational
and operating realities. Frontline transit
worker roles and functions may vary
across different transit agencies.
FTA also considered the
recommendation to define ‘‘State Safety
Oversight Program’’ in the rule. FTA
disagrees that this term should be
defined in this rule. FTA notes that the
SSO Program requirements stated in the
commenter’s suggested definition are
explicitly stated in 49 CFR part 674.
FTA does not believe it is necessary to
repeat them in part 673.
FTA proposed removing the term
‘‘serious injury’’ from the rule in
response to industry feedback stating
that the criteria established under that
definition were difficult to apply and
led to confusion, rather than clarity.
This change is intended to simplify the
classification of safety events, and FTA
will adopt the removal of this term as
proposed. However, FTA agrees with
the commenter that recommended FTA
add a definition of ‘‘injury’’ to the rule.
This term is used in the regulation in
the context of the safety risk reduction
program, so FTA believes that adding a
definition provides necessary clarity.
FTA’s National Safety Plan, which
establishes safety performance measures
for the transit industry, directs users to
the NTD for the definition of ‘‘injury.’’
In response to comments, and for
consistency across programs, FTA has
added the same definition of ‘‘injury’’
used by the NTD to this final rule.
C. Section 673.11—Agency Safety Plans
1. General
Comments: One commenter requested
that FTA provide additional guidance
on developing ASPs to allow transit

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

agencies and contractors to modify
contracts to address necessary ASP
changes. Two commenters urged FTA to
consider how the proposed changes to
the PTASP regulation would impact
transit agencies with contracted transit
services.
Two commenters requested that FTA
define timelines or milestones related to
RTA SMS implementation to support
SSOA oversight of RTAs. One of these
commenters expressed that additional
requirements from FTA and SSOAs
make SMS more complex and less
scalable.
One commenter stated that FTA
should require transit agencies to
include their Safety Management Policy
statement in their ASP along with
processes for workers to report safety
concerns. The commenter noted that
inclusion is necessary to ensure that the
Safety Committee reviews and approves
these processes.
Response: FTA will consider
expanding its existing technical
assistance regarding ASP development,
distribution of the Safety Management
Policy statement, and SMS
implementation. FTA notes that PTASP
requirements, including any changes
adopted in this final rule, apply to
transit providers that directly operate
service as well as those that use
contractors to provide transit service.
FTA took this into consideration when
developing the final rule.
FTA acknowledges the commenters
that recommended FTA establish
timeline or milestone requirements for
RTA SMS implementation to support
SSOA oversight activity. Further, FTA
acknowledges the related concern that
additional requirements may make the
PTASP regulation less flexible and less
scalable. In response, FTA notes that
most revisions adopted in this final rule
implement statutory changes. Further,
FTA believes that establishing
additional SMS implementation
milestone requirements for RTAs would
limit the flexibility and scalability of
SMS. FTA notes that SSOAs may
establish additional safety requirements
for the RTAs they oversee.
In response to the commenter that
requested FTA require agencies to
incorporate the Safety Management
Policy statement into their ASP, FTA
notes that in § 673.23(a), FTA
establishes requirements for the Safety
Management Policy component of a
transit agency’s SMS and includes the
requirement for an agency to have a
written Safety Management Policy
statement. Based on this existing
requirement, FTA expects a transit
agency to include or incorporate by
reference a Safety Management Policy

PO 00000

Frm 00012

Fmt 4701

Sfmt 4700

statement in its ASP, as well as the
processes for transit workers to report
safety concerns. FTA notes that any
documents incorporated by reference in
the ASP that are used to address PTASP
regulation requirements are part of the
Safety Committee’s review and approval
process. FTA declines to make changes
to the regulatory text in response to
these comments.
2. ASP Updates
Comments: FTA received several
comments about the annual ASP review
and approval requirement set forth in
§ 673.11(a)(5). One commenter noted
that FTA should establish an annual
ASP approval deadline that does not
coincide with fall and winter holidays,
noting that the initial December 31
compliance date for Safety Committee
approval of ASPs was difficult to meet.
Three commenters asked whether a
transit agency must follow the review,
signature, and approval process
outlined in § 673.11(a)(1) if the only
change the agency made to the ASP was
to update its safety performance targets
(SPTs). Two commenters requested FTA
issue guidance classifying SPT revisions
as non-material substantive changes that
are not required to undergo the
§ 673.11(a)(1) approval process.
Response: FTA appreciates the
comment regarding establishing an
annual ASP approval deadline that does
not coincide with the fall and winter
holiday season. FTA notes that it
established one-time compliance dates
of July 31, 2022, and December 31,
2022, to address certain Bipartisan
Infrastructure Law PTASP
requirements.29 FTA is not establishing
any such fixed deadlines in this final
rule. Instead, the PTASP regulation
requires transit agencies to review and
update their ASPs annually to address
needed changes, such as regulatory
changes. FTA expects transit agencies to
address the regulatory changes adopted
in this final rule in their next ASP
update based on their existing ASP
update process documented in their
ASP.
Transit agencies that update the SPTs
in their ASP must follow the review,
signature, and approval process
outlined in § 673.11(a)(1). This follows
existing practice under the PTASP
regulation. FTA notes that changes to
SPTs may have a direct impact on
transit agency activity. This is especially
true with respect to the SPTs set as part
29 Federal Transit Administration (February 17,
2022). ‘‘Dear Colleague Letter: Bipartisan
Infrastructure Law Changes to PTASP
Requirements.’’ https://www.transit.dot.gov/safety/
public-transportation-agency-safety-program/dearcolleague-letter-bipartisan-infrastructure.

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
of the safety risk reduction program of
large urbanized area providers.
However, FTA notes that agencies and
their Safety Committees may leverage
different approval processes based on
the types of changes being proposed, as
long as the process results in the
approval by the Safety Committee (for
large urbanized area providers),
approval by the agency’s Board of
Directors or equivalent entity, signature
from the Accountable Executive, and
approval by the SSOA (for RTAs). This
means that a transit agency and its
Safety Committee, as applicable, could
use a more streamlined review and
approval process for its ASP if the only
changes to the document are SPT
revisions, as long as the process results
in the required approvals and signature.
FTA does not believe additional
regulatory text is necessary.

khammond on DSKJM1Z7X2PROD with RULES2

3. Roadway Workers
Comments: An RTA commenter
opposed language proposed at
§ 673.11(a)(6)(ii), which would require
RTAs to include or incorporate by
reference in their ASPs any policies and
procedures regarding rail transit
workers on the roadway the RTA has
issued. This commenter stated that FTA
should remove this paragraph and
incorporate it into FTA’s forthcoming
Roadway Worker Protection rulemaking
instead.
Response: FTA appreciates the
comment regarding § 673.11(a)(6)(ii).
FTA notes that the regulatory language
does not establish any new
requirements for roadway worker
protection. The additional language
only requires transit agencies to include
or incorporate by reference in their ASP
any such policies or procedures issued
by the transit agency. FTA does not
believe that this requirement related to
ASP documentation would conflict with
any future regulation that may establish
roadway worker requirements.
4. State Safety Oversight
Comments: FTA received several
comments regarding proposed
§ 673.11(a)(6)(iii), which would require
RTAs to include or incorporate by
reference the policies and procedures
developed in consultation with SSOAs
regarding the SSOA’s risk-based
inspection program. Two commenters
stated that RTAs and SSOAs should
establish a working group to develop the
SSOA’s risk-based inspection program
and to establish language for the ASP
regarding physical and digital access to
the RTA.
One commenter requested FTA clarify
what consultation RTAs are required to
have with SSOAs for purposes of this

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

requirement. One commenter asked
FTA to clarify that the SSOA develops
the risk-based inspection program
policies and procedures, and that the
RTAs must comply with the SSOA’s
certified program. This commenter
noted that per 49 U.S.C. 5329(k), the
RTA must include the SSOA’s policies
and procedures in its ASP.
Another commenter recommended
that FTA specify that RTAs do not need
to comply with § 673.11(a)(6)(iii) until
the SSOA’s risk-based inspection
program is in place. They also requested
that FTA change the language in this
paragraph from ‘‘provide access and
required data’’ to ‘‘provide access to
required data.’’
One commenter observed that the
NPRM did not address requirements
and processes for RTAs to ensure that
their ASP is approved by their SSOA.
In addition, FTA received a few
comments regarding FTA’s SSO
Program set forth in 49 CFR part 674.
Response: FTA agrees that SSOAs and
RTAs may benefit from working
together as appropriate on the SSOA’s
risk-based inspection program. This
final rule does not establish any new
requirements for an SSOA’s risk-based
inspection program. Instead, this final
rule requires RTAs to document or
incorporate by reference in the ASP the
processes they use to address any riskbased inspection program requirements
established by their SSOA. As such,
FTA believes that it is inappropriate to
establish additional requirements or
clarifications specific to SSOA riskbased inspection programs in this final
rule. Similarly, FTA declines to
establish a distinct timeline in this final
rule for RTA ASPs to incorporate
language relating to their SSOA’s riskbased inspection program.
Further, FTA disagrees with the
commenter’s suggested language change
regarding access. Through a risk-based
inspection program, SSOAs will
perform inspections at transit agencies
based on safety risk. An SSOA needs
data access to support risk
determinations and inspection
prioritization and needs physical access
to conduct inspections. Accordingly,
this final rule does not change the
language proposed in the NPRM.
The Federal requirement for SSOAs to
approve the ASPs for RTAs under their
jurisdiction is established through
§ 673.13(a) and part 674. As described
in part 674, the SSOA is responsible for
establishing timelines relating to SSOA
approval of RTA ASPs. FTA believes
that this function should remain with
the SSOA to permit the oversight entity
to set an appropriate timeline. Example
timelines are publicly available through

PO 00000

Frm 00013

Fmt 4701

Sfmt 4700

25705

FTA’s PTASP Technical Assistance
Center.
Regarding the comments relating to
FTA’s SSO program, FTA thanks
commenters for these suggestions and
will take them into consideration.
However, FTA notes that they are
outside the scope of the PTASP NPRM
and therefore declines to address them
in this final rule.
5. Safety Performance Targets
Comments: For comments specific to
the safety performance targets in the
safety risk reduction program, see
section II.G of this preamble. The
National Safety Plan includes additional
information on the safety performance
measures used to address the statutory
requirements of the safety risk reduction
program.
Two commenters requested that FTA
permit transit agencies to set
percentage-based safety performance
targets.
Response: As defined in the National
Safety Plan, transit agencies must set
safety performance targets for the safety
risk reduction program by number and
rate. Transit agencies may calculate the
change their agency wants to make
using whole numbers or percentages.
For example, a transit agency could set
a safety performance target for injuries
by defining a reduction of two injuries
over an established time period or by
defining a 20 percent reduction over an
established time period.
D. Section 673.13—Certification of
Compliance
1. General
Comments: Two commenters
requested clarification on the
requirement for direct recipients to
annually certify that they and all
applicable subrecipients are in
compliance with PTASP requirements.
They stated that this requires States,
who may perform the role of a direct
recipient for certain transit agency
subrecipients, to assume ongoing
compliance oversight. These
commenters argued that this is a change
in practice and that a State currently is
responsible for drafting the ASP for
small public transportation providers
but is not responsible for providing
ongoing oversight of those ASPs.
Response: This rule does not establish
any changes to the existing annual
certifications and assurances process
used by States and transit agencies to
certify compliance with part 673. To the
extent that a State acts as a section 5307
direct recipient for certain transit
agency subrecipients who must comply
with the PTASP regulation, the State

E:\FR\FM\11APR2.SGM

11APR2

25706

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

khammond on DSKJM1Z7X2PROD with RULES2

must annually certify to its compliance
and the compliance of any applicable
subrecipients with PTASP
requirements. This is the same process
used by FTA for all rules and associated
compliance requirements.
2. Compliance Enforcement
Comments: FTA received several
comments, including from certain
members of Congress, international
labor organizations, and local unions,
stating that FTA needs a process to
monitor and enforce compliance with
the PTASP requirements. Several of
these commenters expressed concern
about FTA’s oversight of the Bipartisan
Infrastructure Law Safety Committee
requirements, with three of them noting
that they estimate approximately 50
transit agencies were out of compliance
at the time the comments were
submitted. A few commenters also
provided specific allegations of PTASP
noncompliance. Commenters expressed
concern that, without an established
process for FTA to enforce the
requirements of the rule, transit agency
management may see the Safety
Committee as a mere ‘‘check the box’’
exercise and not fully implement or
utilize the expertise of the Safety
Committee.
Three commenters urged FTA to
establish a formal mechanism to receive
claims of PTASP noncompliance,
investigate such claims, and issue
related findings and penalties. In
addition, the Amalgamated Transit
Union in a March 26, 2024, Executive
Order 12866 review meeting suggested
that FTA provide specific notice of
noncompliance with PTASP prior to
withholding FTA capital funds. One
also urged FTA to require transit
agencies to submit their ASPs to FTA
for a compliance review.
In addition, another commenter
suggested that FTA require transit
agencies to submit an ASP signature
page as part of its annual PTASP
certification under § 673.13. This
signature page would state that the ASP
was approved and would be signed by
the Safety Committee’s lead union
representative and lead management
representative.
Some commenters stated that FTA
should take enforcement action against
noncompliant agencies, including
withholding Federal funds. Relatedly,
one commenter urged that compliance
with the PTASP regulation should be
tied to Federal funding eligibility.
Response: FTA requires applicable
recipients to certify that they have
established an ASP that meets the
requirements of the PTASP regulation
and 49 U.S.C. 5329(d) as part of the

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

annual Certifications and Assurances for
FTA grants and cooperative agreements.
FTA notes that per 49 U.S.C.
5307(c)(1)(L), this certification is a
required condition of receiving section
5307 funding. FTA monitors these
certifications in its Transit Award
Management System (TrAMS) and
assesses compliance with the PTASP
regulation through its existing triennial
review process. Agencies that are found
to have incorrectly or falsely certified
compliance with the requirements are
subject to appropriate enforcement
actions. FTA investigates specific
allegations of noncompliance. FTA is
authorized through 49 U.S.C. 5329(g) to
take enforcement action against a
recipient that does not comply with
Federal law with respect to the safety of
the public transportation system. This
includes requiring the use or
withholding of funds under 49 U.S.C.
5329(g)(1)(D) and (E). The manner in
which FTA provides notice of
noncompliance and enforces under this
provision depends on the particular
circumstances.
Due to the large number of transit
agencies and the existing certification
and review processes, FTA does not
believe it is practical for FTA to review
ASPs annually for each covered transit
agency for compliance with the PTASP
requirements. However, FTA notes that
it does not need to wait until the
Triennial Review process to review a
transit agency’s compliance with
PTASP. FTA may do so whenever it
deems necessary. Further, FTA does not
believe that an additional requirement
for an agency to upload a signature page
is necessary at this time. FTA is
considering the development of a
mechanism to receive allegations of
non-compliance with the PTASP
requirements.
E. Section 673.17—Cooperation With
Frontline Transit Worker
Representatives
Comments: Six commenters
addressed proposed § 673.17(b), which
sets forth the cooperation with frontline
transit worker representative
requirements for transit agencies that do
not meet the definition of ‘‘large
urbanized area provider.’’ Two
commenters urged FTA to specify in the
final rule what ‘‘cooperation’’ means,
noting that this is a subjective term that
is open to varying interpretations. One
of these commenters recommended that
FTA require management at small
transit agencies to meet with frontline
transit worker representatives at least 60
days before the ASP is due so that both
parties can review the ASP together.
Further, it urged FTA to require

PO 00000

Frm 00014

Fmt 4701

Sfmt 4700

management to meet with frontline
transit worker representatives again at
least 30 days, but no more than 45 days,
before the ASP is due.
One of these commenters
recommended that FTA encourage small
transit agencies to establish joint labormanagement safety committees
voluntarily. A separate commenter
asked what FTA’s expectations are for
labor representative involvement in the
cooperation process, and whether
collecting feedback in safety meetings
would be sufficient. The same
commenter argued that the ambiguity of
this requirement and a lack of dispute
resolution requirements could lead to
conflict.
Two commenters asked how the
requirement at § 673.17 dovetails with
the proposed Safety Committee
provisions at § 673.19.
Response: FTA appreciates comments
regarding the requirement for transit
agencies that do not serve a large
urbanized area to cooperate with
frontline transit worker representatives
when developing and updating an ASP.
This final rule provides each transit
agency the flexibility to define how it
will involve and cooperate with
frontline transit worker representatives
to support the development and
subsequent updates of the ASP. In
§ 673.17(b)(2), FTA is requiring each
transit agency that does not meet the
definition of ‘‘large urbanized area
provider’’ to document this process in
its ASP. In line with existing practice
and efforts to ensure flexibility and
scalability, FTA declines to establish
specific timeline requirements for the
cooperation processes as suggested by
the commenter.
In response to comments received
regarding involvement of a labor union
in the required cooperation with
frontline employee representatives, FTA
notes that 49 U.S.C. 5329(d) and
§ 673.17(b) do not require transit
agencies that do not serve a large
urbanized area to involve a labor union
in this cooperation process, but that
transit agencies may opt to do this
voluntarily. Similarly, FTA does not
require transit agencies that do not meet
the definition of ‘‘large urbanized area
provider’’ to establish a Safety
Committee but notes that these transit
agencies may establish a Safety
Committee voluntarily. FTA encourages
these transit agencies to voluntarily
establish Safety Committees and to
involve labor unions in the required
process of cooperating with frontline
employee representatives.
FTA acknowledges the comment that
requested clarification of how this
requirement relates to the requirement

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
for a Safety Committee. FTA notes that
the requirements for developing,
reviewing, and approving ASPs differ
depending on whether the transit
agency is considered a large urbanized
area provider as defined in the rule.
Large urbanized area providers must
establish a Safety Committee, which
must review and approve the agency’s
ASP and subsequent updates. For transit
agencies that must meet PTASP
requirements but are not large urbanized
area providers as defined in this rule,
§ 673.17(b) requires the agency to
develop the ASP and subsequent
updates in cooperation with frontline
transit worker representatives.
FTA is not establishing additional
requirements or guidance on
cooperation with frontline transit
workers in this rule. FTA will consider
this topic for future guidance and
technical assistance.

khammond on DSKJM1Z7X2PROD with RULES2

F. Section 673.19—Safety Committee
1. General
Comments: FTA received several
comments about proposed § 673.19,
which sets forth the requirements
regarding Safety Committees for large
urbanized area providers. Several
commenters expressed general support
for the requirements, noting the
importance of a forum for labor and
management to work cooperatively to
remedy safety issues. A few commenters
provided examples of the successful
implementation of Safety Committees.
One commenter specifically supported
limiting the applicability of the Safety
Committee requirements to large
urbanized area providers.
FTA received comments from 30 local
labor organizations expressing that
FTA’s proposed Safety Committee
requirements are insufficient and allow
transit agencies to ignore the safety
concerns of frontline transit workers.
These commenters urged FTA to ensure
that the voices of frontline workers are
heard in a meaningful way and that
transit agencies utilize the safety-related
expertise of these workers. They
provided numerous examples of safety
issues occurring at their transit agencies,
including assaults on transit workers,
inadequate restroom access, law
enforcement response times, premises
security, blind spots, and unsafe vehicle
conditions. Some noted that their Safety
Committees have not yet been effective
because transit agencies are not
listening to the committees.
Three commenters expressed concern
that establishing and operating a Safety
Committee will be a significant financial
burden for transit agencies. One
commenter requested FTA provide

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

flexibility regarding the Safety
Committee requirements, noting that
employees on the Safety Committee are
not always safety professionals.
Two comments addressed the number
of Safety Committees that a transit
agency may establish. A labor
organization commenter stated that
requiring one Safety Committee to
review and approve multiple ASPs and
to conduct its statutorily required
responsibilities for multiple ASPs is too
burdensome, and recommended that
FTA require a ‘‘one ASP, one Safety
Committee’’ approach. The commenter
requested that FTA specify in the final
rule that transit agencies must establish
one Safety Committee per ASP and may
not use the same Safety Committee for
multiple ASPs. The second commenter
raised concerns about committees other
than the Safety Committee addressing
issues related to operator assault.
One SSOA commenter asked when
transit agencies must comply with the
Safety Committee requirements
established in the rule.
Response: FTA acknowledges the
appreciation for the new Safety
Committee requirements received from
commenters. FTA also acknowledges
the feedback received from the 30 local
labor organizations that said the Safety
Committee requirements are insufficient
and allow transit agencies to ignore the
safety concerns of frontline transit
workers. FTA is committed to ensuring
the voices of frontline workers are heard
in a meaningful way and believes the
Safety Committee requirements of this
final rule accomplish this objective.
FTA appreciates that the formation
and ongoing operation of the Safety
Committee may increase the burden on
transit agencies, both in terms of direct
cost and worker availability. FTA
reminds the commenters that the Safety
Committee is a statutorily required
function for applicable agencies and
further believes that transit agencies
will receive safety benefits from
establishing and operating a Safety
Committee. FTA also acknowledges the
commenter who pointed out many
Safety Committee members are not
safety professionals. FTA understands
this reality and does not expect a transit
agency’s Safety Committee to replace a
transit agency’s safety department. In
practice, FTA encourages Safety
Committees to utilize subject matter
expertise from non-committee members
to support decision-making. FTA
understands that this is a common
support structure for Safety Committees
when it comes to data analysis and
safety risk assessment, as well as
information gathering related to specific
agency systems, technologies, or

PO 00000

Frm 00015

Fmt 4701

Sfmt 4700

25707

procedures. FTA believes the language
of this final rule offers sufficient
flexibility that ensures the voices of
frontline workers are heard in a
meaningful way and that the Safety
Committee can consult non-member
subject matter expertise to support the
Safety Committee’s needs.
FTA agrees that using the same Safety
Committee for multiple ASPs may make
meeting Safety Committee requirements
more cumbersome. However, to the
extent that the Safety Committee is
convened and conducts business as
required in 49 U.S.C. 5329(d) and part
673, FTA declines to prohibit transit
agencies from using the same Safety
Committee for multiple ASPs as this
may place unnecessary burdens on
transit agencies that operate under
multiple ASPs. FTA notes that if a
transit agency with multiple ASPs
would like to establish a Safety
Committee for each ASP, this final rule
does not prohibit them from doing so.
In response to the commenter that
expressed concerns about a transit
agency addressing issues such as transit
worker assault in a special committee
instead of the joint labor-management
Safety Committee, FTA confirms that
the responsibilities of the Safety
Committee, as required in 49 U.S.C.
5329(d) and this final rule, must be
addressed by the Safety Committee.
FTA notes that a transit agency may use
other mechanisms within the
organization to address safety risk, such
as a special committee, task force, or
study, but these mechanisms cannot
eliminate or satisfy the role of the Safety
Committee to address any of the
applicable requirements in this final
rule.
FTA notes that in response to the
Bipartisan Infrastructure Law, it
established one-time compliance dates
of July 31, 2022, and December 31,
2022, to address certain Bipartisan
Infrastructure Law requirements,30
including the establishment of Safety
Committees and the update and
approval of ASPs to reflect the new
Safety Committees. FTA is not
establishing any such fixed deadlines in
this final rule. Instead, the PTASP
regulation includes the requirement for
transit agencies to review and update
their ASPs annually to address needed
changes, such as regulatory changes.
FTA expects transit agencies to address
any regulatory changes in their next
ASP update based on their existing ASP
30 Federal Transit Administration (February 17,
2022). ‘‘Dear Colleague Letter: Bipartisan
Infrastructure Law Changes to PTASP
Requirements.’’ https://www.transit.dot.gov/safety/
public-transportation-agency-safety-program/dearcolleague-letter-bipartisan-infrastructure.

E:\FR\FM\11APR2.SGM

11APR2

25708

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
3. Membership

update process documented in their
ASP.

khammond on DSKJM1Z7X2PROD with RULES2

2. Size, Scale and Structure
Comments: FTA received several
comments on proposed § 673.19(a)(1),
which would require Safety Committees
to be appropriately scaled to the size,
scope, and complexity of the transit
agency. Two commenters explicitly
opposed this language and asked FTA to
strike it. FTA received several
comments requesting additional
guidance and clarification of this
provision. Some comments expressed
concern about the subjectivity of the
requirement, including the ambiguity as
to who determines whether a Safety
Committee is scaled appropriately.
Proposed § 673.19(a)(2) set forth the
requirement that Safety Committees be
convened by a joint labor-management
process. Two commenters suggested
revising this language to state that the
Safety Committee’s structure and
operating rules are determined by
consensus decisions between labor and
management.
Response: FTA’s PTASP regulation
must address the needs of a wide range
of transit environments, from large
transit systems to very small providers,
and from basic transit applications to
extremely complex technologies. As
with existing regulatory practice, FTA
must ensure that part 673 includes
sufficient flexibility to support SMS
implementation across these ranges of
transit agencies. As a result, FTA
expects that Safety Committees will be
sized differently based on the size,
scope, and complexity of the transit
agency. Therefore, FTA declines to
change the proposed language.
FTA also encourages transit agencies
and their Safety Committees to hold
periodic discussions about the size and
scope of the Safety Committee to
determine whether it is appropriate to
add additional members or to change
the scope of the Safety Committee’s
purview, while ensuring that the Safety
Committee’s activities still meet all
statutory and part 673 requirements.
FTA declines the suggestion to revise
§ 673.19(a)(2), as FTA’s proposed
language mirrors the statute. FTA notes
that § 673.19(c) requires Safety
Committee procedures to address the
committee’s composition,
responsibilities, and operations. FTA
refers readers to Sections II.F.4 and
II.F.6. of the preamble below for
additional discussion of this topic and
Safety Committee decision-making and
dispute resolution, respectively.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Comments: Several commenters
remarked on the Safety Committee
membership provisions that FTA
proposed in § 673.19(b).
One commenter stated that the Safety
Committee requirements are unrealistic
for frontline transit worker
representatives, noting that activities
would require Safety Committees to
meet at least weekly.
One transit agency commenter
strongly supported FTA’s proposed
language in § 673.19(b) that, to the
extent practicable, the Safety Committee
must include frontline transit worker
representatives from major transit
service functions across the transit
system. In contrast, a labor organization
commenter explicitly opposed this
proposed language and requested that
FTA remove it from § 673.19(b). This
commenter argued that imposing
restrictions on the plurality union’s
choice is inconsistent with 49 U.S.C.
5329(d) and FTA’s existing guidance,
and it would be inequitable without any
corresponding restrictions on a transit
agency’s choice of management
representatives. It argued that the
plurality union must have flexibility to
choose the transit worker
representatives it finds most beneficial
for the Safety Committee. A separate
commenter requested that FTA clarify
the rationale for its proposed language
and clarify its application, given that the
language does not appear in the statute.
Several comments pertained to the
frontline transit worker representative
selection process in § 673.19(b)(1). Six
commenters expressed concern that the
plurality union may select frontline
transit worker representatives that are
not representative of the entirety of the
frontline workforce, particularly in
cases where some workers are
unrepresented or where an agency has
more than one labor organization. Two
of these commenters stated that a fairer
selection process would be for FTA to
require that frontline transit worker
representatives be selected from each
bargaining unit at a transit agency. One
of these commenters urged FTA to
establish Safety Committee selection
requirements that reflect the objective of
informed risk management.
Some comments requested additional
guidance from FTA about the selection
process. One commenter asked FTA to
clarify the definition of ‘‘frontline
transit worker’’ and asked whether
volunteers and contractors need to be
represented on the Safety Committee,
given they are included in the definition
of ‘‘transit worker’’ in § 673.5. Two
commenters noted that transit agencies

PO 00000

Frm 00016

Fmt 4701

Sfmt 4700

may have multiple contractors that
provide service and operations and
requested more guidance on the
structure of frontline transit worker
representation on Safety Committees in
such situations. One of these
commenters urged FTA to confirm that
contractors should serve on Safety
Committees, given that contractors may
be impacted by Safety Committee
recommendations. Another commenter
stated that its Safety Committee does
not include ‘‘line-level’’ labor
representatives and that including such
transit workers on the Safety Committee
is not practical, and that the
requirement for equal membership of
management and frontline transit
worker representatives is not realistic.
Another commenter stated that some
transit workers might not be interested
in serving on the Safety Committee and
should not be forced to participate.
One commenter stated that the
selection criteria for frontline transit
worker representatives can allow
management to have an unfair
advantage on the Safety Committee. The
commenter cited an example of a
frontline transit worker representative
on the Safety Committee who is a
member of a union that represents
supervisors and asserted this means the
Safety Committee no longer has equal
numbers of frontline workers and
management.
One comment pertained to proposed
§ 673.19(b)(2), which would require
transit agencies without labor unions to
adopt a mechanism for frontline transit
workers to select the frontline transit
worker representatives for the Safety
Committee. The commenter requested
that FTA provide its rationale for this
requirement and clarify its application,
noting that it does not appear in 49
U.S.C. 5329(d).
One commenter noted that in the
preamble to the NPRM, FTA
distinguished between voting Safety
Committee members and alternates who
serve in a non-voting capacity. The
commenter urged FTA to require that
the number of non-voting members be
limited to an equal number of
management and frontline transit
worker representatives. It stated that
some transit agencies have attempted to
add non-voting management positions
to Safety Committees, which has tipped
the balance in favor of management in
a manner inconsistent with 49 U.S.C.
5329(d).
Response: FTA appreciates the
feedback received supporting the
proposed language in § 673.19(b). FTA
acknowledges the comment received
regarding the challenges of asking
frontline transit workers to participate

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
in the Safety Committee and notes that
frontline worker representative
participation is mandated by statute. As
such, the requirement is maintained in
the final rule.
Similarly, FTA acknowledges the
comment that requested FTA remove
the language about including frontline
transit worker representatives from
major transit service functions as it may
impose restrictions on the plurality
union’s choice and would therefore be
inconsistent with 49 U.S.C. 5329(d) and
inequitable without any corresponding
restrictions on a transit agency’s choice
of management representatives. FTA
notes that this language in § 673.19(b)
provides parameters to strengthen
frontline transit worker representation
without contradicting statutory language
on the selection of frontline employee
representatives by the plurality labor
organization. FTA expects that, to the
extent practicable, the Safety Committee
will include frontline transit worker
representatives from major transit
service functions. However, FTA notes
that this may not be feasible in all
situations; FTA includes the statement
‘‘to the extent practicable’’ to ensure
flexibility for all transit agency
applications.
The language in § 673.19(b) reflects
FTA’s belief that Safety Committees are
most effective when they include
representatives from multiple service
functions. It is intended to strengthen
the diversity of frontline worker
representation and to ensure a breadth
of perspective and expertise to support
Safety Committee activity.
FTA also acknowledges comments
expressing concern that the plurality
union may select frontline transit
worker representatives that are not
representative of the entirety of the
frontline workforce if workers are
unrepresented or if an agency has more
than one labor organization. FTA also
acknowledges the two commenters who
recommended that the section should
require frontline transit worker
representatives be selected from each
bargaining unit at a transit agency. FTA
agrees that selecting representatives
from a narrow pool of only one service
function or only from one represented
labor organization can inadvertently
reduce the effectiveness of the Safety
Committee. However, FTA does not
agree that FTA should require the
plurality labor organization to select
Safety Committee members who are not
members of their labor union or who are
not members of any labor union. FTA
acknowledges the potential for narrow
representation of frontline transit
workers in the Safety Committee. As
discussed above, FTA believes that the

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

language in § 673.19(b) regarding
including frontline transit worker
representatives from major transit
service functions to the extent
practicable appropriately strengthens
frontline worker representation. As
such, FTA declines to establish the
additional requirements suggested by
commenters.
FTA acknowledges comments
requesting additional guidance on the
frontline transit worker representative
selection process and the questions
about whether volunteers and
contractors need to be represented on
the Safety Committee. While FTA has
not established requirements for
volunteers and contractors to participate
as frontline transit worker
representatives on the Safety
Committee, the plurality labor
organization may decide to include
these types of workers on the Safety
Committee. FTA appreciates that the
composition of an agency’s workforce
may mean that individuals from
multiple contracting groups are selected
for the Safety Committee. To the extent
the selection process meets the
requirements of 49 U.S.C. 5329(d)(5)(A)
and § 673.19(b), this is permissible. FTA
does not currently have any further
guidance in this final rule on Safety
Committee membership at transit
agencies with more than one contracting
group. FTA notes this final rule does not
require a transit agency that provides
contracted service to have contractor
management representatives on the
Safety Committee, but the agency may
do so.
FTA acknowledges the comments
expressing concern that the Safety
Committee membership requirements
are not practicable, including Safety
Committee membership by ‘‘line-level’’
transit workers and equal membership
of management and frontline transit
worker representatives. In response,
FTA notes that 49 U.S.C. 5329(d)(5)(A)
requires the labor organization that
represents the plurality of the transit
agency’s frontline transit workers to
select frontline transit worker
representatives. The statute does not
provide the transit agency the option to
determine that including ‘‘line-level’’
transit workers is not practicable.
Further, FTA reminds the commenters
that the Safety Committee’s equal
membership of frontline employee
representatives and management
representatives is required by statute.
FTA acknowledges that frontline
transit worker representatives may
include workers in a supervisory
position, as described by the
commenter. However, FTA disagrees
that this contradicts the requirement for

PO 00000

Frm 00017

Fmt 4701

Sfmt 4700

25709

equal frontline transit worker and
management representation because
some supervisory roles, such as line,
route, or regional supervisors, involve
work that takes place primarily in
frontline environments. Such roles can
support operators, monitor field
conditions, adjust service levels or
routes to respond to potential service
disruptions, interact with customers to
provide service information, and deescalate situations that have the
potential to result in assaults on
operators and other transit workers. If
the plurality labor union identifies such
an individual as a frontline transit
worker representative, they may select
this individual for the Safety
Committee.
FTA acknowledges the comment
regarding § 673.19(b)(2), which
requested that FTA provide its rationale
for requiring transit agencies without
labor unions to adopt a mechanism for
frontline transit workers to select the
frontline transit worker representatives
for the Safety Committee. FTA notes
this requirement helps to ensure that
when no frontline transit workers are
represented by a labor union, the
frontline transit workforce will still
have a voice in the selection of their
representatives on the agency’s Safety
Committee.
Finally, FTA acknowledges the
commenter who urged FTA to require
that the number of non-voting Safety
Committee members be limited to an
equal number of management and
frontline transit worker representatives.
FTA notes that it has removed all
references to voting in the final rule, as
described further in section II.F.4 below,
and instead, FTA expects Safety
Committees to define decision-making
mechanisms.
4. Safety Committee Procedures
General
Comments: FTA received several
comments regarding § 673.19(c), which
sets forth requirements for Safety
Committee procedures. Two
commenters expressed their general
support for FTA’s proposal requiring
transit agencies to include or
incorporate by reference such
procedures in the ASP.
One commenter noted that the
procedural requirements are not present
in the statute and asked whether transit
agencies are required to negotiate the
procedures with frontline transit worker
representatives. The commenter stated
this could impact collective bargaining
agreements and have cost impacts for
the transit agency.

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

25710

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

One commenter expressed general
support for this provision but suggested
that FTA require an agency’s
Accountable Executive to approve the
Safety Committee procedures and that
they be included by reference in the
ASP. The commenter expressed concern
that disputes over the procedures could
delay the ASP approval process and
result in negotiations with labor
organizations over issues that are
outside of a collective bargaining
agreement. Two commenters
recommended the Safety Committee
procedures should be approved by the
Accountable Executive and included by
reference in the ASP, but not approved
by the Safety Committee. One
commenter expressed concern that
Safety Committees do not always
function collaboratively, from setting
meeting agenda items to voting on
decision points.
Two commenters urged FTA to
require transit agencies to reach an
agreement with transit workers about
the Safety Committee’s structure and
procedures through either consensus or
democratic voting. One of these
commenters urged that such an
agreement must be in writing and
included or incorporated by reference in
the ASP, expressing that requiring
transit agencies merely to ‘‘address’’ the
procedural items listed in § 673.19(c) is
inadequate.
Response: FTA appreciates the
positive feedback received from
commenters about the requirement to
include or incorporate by reference the
Safety Committee procedures in the
ASP.
FTA acknowledges that the statute
does not define specific procedures for
Safety Committees. FTA notes that, as
with existing requirements regarding
SMS processes and activities, the
PTASP regulation establishes
procedural requirements to ensure
effective implementation of statutory
requirements. In response to the
commenter’s question about potential
impacts on collective bargaining
agreements, FTA notes that negotiation
is not explicitly required, but
§ 673.19(a)(2) requires the Safety
Committee to be convened by a joint
labor-management process. FTA
acknowledges that, in practice, this may
involve some level of negotiation.
FTA acknowledges the commenter
that suggested FTA require the
Accountable Executive to approve the
Safety Committee procedures and that
they be included by reference in the
ASP. Section 673.19(c) requires agencies
to include or incorporate by reference in
their ASP the Safety Committee
procedures. Further, as described in

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Section II.F.5 below, the Accountable
Executive’s role is to sign the ASP and
ensure that the ASP and SMS processes
are carried out. As such, the
commenter’s request was addressed by
the NPRM, and no changes are made in
the final rule in response to this
comment. FTA notes that this final rule
does not establish Accountable
Executive veto power over the contents
of the ASP, because that would be
inconsistent with statutory requirements
relating to the composition of Safety
Committees, as well as the statutory
requirement that the Safety Committee
and Board of Directors must approve the
ASP—not the Accountable Executive.
FTA disagrees that it is appropriate to
exclude the Safety Committee
procedures portion of the ASP, even if
incorporated by reference, from the
Safety Committee’s approval. The
statute requires the Safety Committee to
approve the ASP, and as noted above,
the procedures must be included or
incorporated by reference in the ASP.
FTA acknowledges the concern
regarding challenges associated with
operating a Safety Committee with equal
frontline transit worker and
management engagement. FTA
encourages Safety Committees to work
collaboratively to set and execute
procedures for determining Safety
Committee agenda items and making
decisions. These items are discussed
further in the preamble sections below.
FTA believes that the use of the word
‘‘address’’ before listing the minimum
requirements for Safety Committee
procedures is appropriate because it
provides flexibility, and the
accompanying regulatory requirements
are sufficient to ensure a transparent
and standardized process. In § 673.19(c),
FTA requires each large urbanized area
provider to include or incorporate by
reference in its ASP the procedures
regarding the composition,
responsibilities, and operations of the
Safety Committee, including the
organizational structure, size, and
composition of the Safety Committee
and how it will be chaired; how the
Safety Committee will reach and record
decisions; and how the Safety
Committee will manage disputes to
ensure it carries out its operations. FTA
notes that the ASP and any referenced
documents or appendices that are used
to address PTASP regulation
requirements are part of the annual
review and approval process to confirm
that the ASP meets PTASP regulation
requirements. Thus, the Safety
Committee will review and approve
Safety Committee procedures included
or referenced in the ASP through this
process. Further, a Safety Committee

PO 00000

Frm 00018

Fmt 4701

Sfmt 4700

may opt to use its procedure for
reaching decisions, which may include
voting or consensus mechanisms, to
formally endorse its structure and
procedures.
Meeting Agendas, Notices, and Minutes
Comments: A local union stated that
FTA should require transit agency
management and frontline transit
workers to agree on how often the Safety
Committee should meet and require the
transit agency to adhere to the agreed
upon schedule. Similarly, a transit
agency requested that FTA require
transit agencies to give advance meeting
notice to Safety Committee members as
part of the Safety Committee
procedures.
Two commenters noted the need for
Safety Committees to have regular,
formal meetings. A local union
commenter expressed concern that at
their transit agency, management creates
and presents Safety Committee meeting
agendas without seeking input or a vote
from frontline transit worker
representatives, and that management
representatives have not shared meeting
minutes with the frontline transit
worker representatives.
Response: While FTA agrees that
establishing a meeting schedule for the
Safety Committee would be beneficial
for Safety Committees, it disagrees that
the rule should define or require the
transit agency to define a specific
meeting schedule. The PTASP
regulation gives flexibility to Safety
Committees to schedule meetings in a
manner suitable to the size, scope, and
complexity of their agency. Some
agencies may decide to define a set
schedule and document this in their
Safety Committee procedures. FTA also
acknowledges the commenter’s concern
regarding the development and sharing
of Safety Committee meeting agendas.
FTA agrees with commenter concerns
regarding development and advance
notice of Safety Committee meetings.
Accordingly, FTA has added a
requirement in § 673.19(c)(2) for Safety
Committee procedures to include the
process for developing and sharing
meeting notices.
In response to the comment about
meeting minutes, FTA notes that it is
adopting the proposed requirement
in§ 673.19(c)(2) for Safety Committee
procedures to document how meeting
minutes will be recorded and
maintained.
Training and Qualifications
Comments: Several commenters, as
well as an attendee at an FTA webinar,
expressed concern that some members
of Safety Committees may not have

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
adequate training or qualifications to
perform their required responsibilities.
Two commenters asked whether FTA
would provide or recommend training
for Safety Committee members. One
commenter recommended that FTA
provide training about SMS processes
and data analysis to frontline transit
worker representatives. Another
commenter noted that training Safety
Committee members would add costs to
the transit agency.
FTA received two comments on its
proposed language in § 673.19(c)(3),
which states that Safety Committee
procedures must include any required
ASP and SMS training for members. A
commenter asked FTA to clarify
whether this training is required, or if a
transit agency and its SSOA may decide
whether to provide it. This commenter
further recommended that FTA address
any safety training requirements for
Safety Committee members in the Safety
Promotion section of the regulation at
§ 673.29 instead.
Two commenters asked whether
Safety Committee members are required
to comply with the Public
Transportation Safety Certification
Training Program (PTSCTP)
requirements established under 49 CFR
part 672.
Response: FTA acknowledges
comments that express concern that
Safety Committee members may not
have adequate training or qualifications
to perform their required
responsibilities. While this final rule
does not establish training requirements
specific to Safety Committee members,
transit agencies may establish their own
training requirements for their workers
in accordance with their comprehensive
safety training program. Section
673.19(c)(3) provides that any required
training must be documented in the
Safety Committee procedures. FTA
appreciates the suggestion to include
this requirement in the Safety
Promotion section of the regulation
instead, it but declines to make this
change. For clarity, FTA believes that it
is best for all Safety Committee-related
procedures to be addressed in a single
section of the regulation.
FTA acknowledges the comment that
noted training for Safety Committee
members would add costs to the transit
agency. FTA acknowledges that FTAprovided or FTA-recommended training
for Safety Committee members is useful
and has the potential to reduce burden
on transit agencies, and FTA will
consider this topic for future technical
assistance.
The PTSCTP requires at 49 CFR part
672 that RTAs designate transit workers
who are directly responsible for safety

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

oversight and ensure those workers
comply with PTSCTP training
requirements. The PTSCTP also offers a
voluntary program for bus transit
workers designated by their transit
agency as having direct safety oversight
responsibility. FTA agrees that
participation in the PTSCTP curriculum
can provide valuable context for Safety
Committee members, but it does not
require that Safety Committee members
participate in the PTSCTP, unless they
are otherwise required to do so under
part 672.
Compensation
Comments: A transit agency and a
labor organization requested that FTA
require transit agencies to include
information about compensation for
Safety Committee members in their
Safety Committee procedures. The labor
organization urged FTA to require
transit agencies to pay frontline transit
worker representative members at their
regular hourly rate for all time spent in
Safety Committee meetings and
conducting Safety Committee business.
The commenter expressed that this
would maintain the balance of power
between management, which is
typically compensated on a salary basis,
and frontline transit worker members,
which are usually compensated on an
hourly basis.
Response: FTA appreciates the
comments and concerns regarding
compensation for Safety Committee
members. FTA notes that 49 U.S.C.
5329(d) does not require transit agencies
to compensate Safety Committee
members for time spent on Safety
Committee activities. While FTA does
not manage transit agency compensation
structures, FTA agrees that it is
important for Safety Committee
procedures to address this issue for
transparency. In response to comments,
FTA therefore is adding a requirement
at § 673.19(c)(4) for transit agencies to
document in their Safety Committee
procedures the Safety Committee
compensation policy that the agency has
established for participation in Safety
Committee meetings. FTA is not
requiring transit agencies to compensate
the members of the Safety Committee.
FTA is only requiring that the agency
establish a compensation policy and
document such policy in its Safety
Committee procedures. FTA notes that
the transit agency must have a policy
regarding compensation; however, this
may include a policy to not provide
compensation.

PO 00000

Frm 00019

Fmt 4701

Sfmt 4700

25711

Coordination With Board of Directors
and Accountable Executive
Comments: One commenter
recommended that FTA amend the
proposed requirement at § 673.19(c)(7)
from describing how the Safety
Committee will coordinate with the
Board of Directors or equivalent entity
and the Accountable Executive to ‘‘how
the Safety Committee will communicate
necessary information’’ to those entities,
noting that this change would clarify
and more narrowly define the
requirement. Two commenters
requested that FTA provide guidance on
this process, including FTA’s
expectations regarding the required
amount and level of coordination.
Response: FTA disagrees that the
Safety Committee procedures should
only address how the Safety Committee
will communicate information to the
Board of Directors or equivalent entity
and the Accountable Executive. The
term ‘‘coordinate’’ was specifically
chosen to reflect the flow of information
in both directions—to the Safety
Committee and from the Safety
Committee. The term also encompasses
joint activities the Safety Committee,
Board of Directors or equivalent entity,
and the Accountable Executive may
want to undertake. However, FTA
recognizes that communication between
the Safety Committee, Accountable
Executive, and Board of Directors or
equivalent entity is a key element of
coordination and has revised
§ 673.19(c)(7) to ‘‘how the Safety
Committee will coordinate and
communicate with the Board of
Directors, or equivalent entity, and the
Accountable Executive’’ for clarity.
Due to the varying operating
environments of transit systems, FTA is
deferring to transit agencies to establish
and document the appropriate process
of coordination between the Safety
Committee, Board of Directors or
equivalent entity, and Accountable
Executive, including details on the
frequency and level of coordination.
Additional Suggested Procedures
Comments: One commenter stated
that the required Safety Committee
procedures should include a mechanism
for holding Safety Committee members
accountable for fulfilling their
responsibilities, such as attendance and
completion of tasks assigned to the
Safety Committee. Two commenters
stated that FTA should allow transit
agencies to set minimum qualifications
for participation on the Safety
Committee, such as minimum
experience requirements or restrictions
for certain individuals based on their

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

25712

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

previous safety performance or failure to
attend Safety Committee meetings.
Another commenter urged FTA to
strongly encourage frontline transit
worker representatives to participate
fully at Safety Committee meetings. Two
commenters stated that an agency
should have the authority to include
procedural language to remove Safety
Committee members who intentionally
fail to attend meetings.
Three commenters requested that FTA
require the Safety Committee
procedures include an agreement
between management and frontline
transit worker representatives regarding
participation in Safety Committee
meetings by non-members. Two
commenters stated that at some transit
agencies, managers who are not on the
Safety Committee participate in
meetings, creating a power imbalance
between management and frontline
transit worker representatives. Another
commenter noted that it is reasonable to
expect that a Safety Committee will seek
the expertise of others within and
outside the transit system as it seeks to
identify and define safety risk
mitigations and suggested that the
Safety Committee define procedures for
non-members to participate in Safety
Committee meetings.
Response: Establishing specific
minimum Safety Committee
qualifications or restrictions on frontline
transit worker representative
membership in part 673, such as
minimum experience requirements or
excluding a frontline transit worker
representative selected for the Safety
Committee based on the individual’s
safety performance, would impinge on
the statutorily defined role of the labor
organization representing the plurality
of frontline transit workers to select
frontline employee representatives for
the Safety Committee. Transit agencies
may discuss selection criteria with the
entity or entities responsible for
selecting management and frontline
transit worker representatives, and these
entities may voluntarily adopt their own
selection criteria. However, FTA
declines to require this in the final rule.
FTA agrees that Safety Committee
meetings should be attended by all
members. While FTA is not establishing
requirements for attendance, FTA
recommends that agencies document in
their ASPs any Safety Committee
meeting scheduling and attendance
policies.
FTA appreciates the concern voiced
by the commenters that Safety
Committee participation by nonmembers may result in a power
imbalance. FTA agrees that procedures
for outside participation in Safety

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Committee meetings helps to ensure
that the Safety Committee conducts its
vital work effectively, while
maintaining the balance between
management and frontline transit
worker representatives required by
statute. FTA defines these requirements
at § 673.19(c)(5), which requires the
Safety Committee procedures include
how the Safety Committee will access
technical experts, including other
transit workers, to serve in an advisory
capacity as needed.
5. Safety Committee Authorities,
Accountabilities, and Responsibilities
General
Comments: Five commenters asked
for additional clarity of the authorities,
accountabilities, and responsibilities of
the Safety Committee. One commenter
asked FTA to clarify what ‘‘authorities,
accountabilities, and responsibilities’’
the Safety Committee would have, as
described in proposed § 673.23(d)(3),
arguing that the committee has an
advisory role. One commenter opposed
Safety Committee participation in the
Safety Risk Management process, as set
forth in § 673.19(d)(3), expressing that
this dilutes the power of data-decision
risk management.
Response: As established by
§ 673.23(d), transit agencies must
identify the authorities, accountabilities,
and responsibilities for the management
of safety. FTA notes the Safety
Committee does not merely serve in an
advisory role and instead must meet
statutorily defined requirements. The
Bipartisan Infrastructure Law
established several affirmative
responsibilities for the Safety
Committee at 49 U.S.C. 5329(d), such as
review and approval of the ASP, setting
annual safety performance targets for
the safety risk reduction program, and
supporting the operation of the transit
agency’s SMS.
The Safety Committee’s participation
in the Safety Risk Management process
is statutorily required under 49 U.S.C.
5329(d)(5)(A)(iii). FTA does not agree
that the Safety Committee’s support of
the Safety Risk Management process
dilutes the power of data-driven risk
management. The Safety Committee’s
participation in the Safety Risk
Management process and the related
setting of safety performance targets
explicitly supports data-driven
decision-making.
Relationship to the Accountable
Executive
Comments: FTA received several
comments voicing opposing views
regarding the role of the Safety

PO 00000

Frm 00020

Fmt 4701

Sfmt 4700

Committee and the Accountable
Executive.
Some commenters, including transit
agencies, argued that final decisions
regarding a transit agency’s safety
program should rest with the
Accountable Executive, including the
contents of an ASP, implementation of
Safety Committee recommendations,
and resolution of Safety Committee
disputes. Some commenters argued that
this aligns authority with
accountability, as the Accountable
Executive is ultimately accountable for
the agency’s safety performance. In
support of this view, three commenters
cited a prior Frequently Asked Question
(FAQ) on FTA’s website about this
issue, which FTA removed prior to
publication of the NPRM.
Conversely, FTA received two
comment letters from certain members
of Congress explaining Congressional
intent in enacting the Bipartisan
Infrastructure Law amendments to 49
U.S.C. 5329 relating to Safety
Committees. These members of
Congress stated that the intent of these
amendments was to require a transit
agency’s Accountable Executive to
implement safety risk mitigations that
are recommended by the Safety
Committee and included in the ASP. In
their view, the Accountable Executive
may not revisit, ignore, or reject
elements of an approved ASP. Both
letters urged FTA to remove any
language from the rule that relegates the
Safety Committee to an advisory role,
including language that FTA proposed
in § 673.23 regarding the Accountable
Executive’s role to ‘‘receive and
consider’’ safety risk mitigations.
Similarly, several other commenters,
including labor organizations, opposed
Accountable Executive veto power over
Safety Committee recommendations and
urged FTA to require the Accountable
Executive to implement all Safety
Committee recommendations.
Commenters stated that giving the
Accountable Executive veto power
would tip the power balance on Safety
Committees in favor of management and
noted that management already has a
voice on the Safety Committee through
the management representative
members. Several commenters asserted
that giving the Accountable Executive
veto power would make the Bipartisan
Infrastructure Law changes to 49 U.S.C.
5329 ineffective. Many stated that
frontline transit workers already had the
opportunity to raise safety concerns to
management prior to establishing a
Safety Committee, urging FTA to require
transit agency management to act on
these recommendations to make
meaningful change.

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
Two labor organizations noted that
FTA removed the FAQ referenced by
other commenters from FTA’s website
and one argued that this former FAQ
should not be relied upon as guidance
regarding the role of the Safety
Committee.
Response: FTA appreciates the
questions and suggestions from
commenters to clarify the relationship
between the Safety Committee and
Accountable Executive. FTA agrees that
the Safety Committee should have a
strong voice in safety-related decisionmaking and agrees that the Safety
Committee is not merely an advisory
body.
In response to comments, FTA is
adopting several revisions to the rule to
clarify the role of the Accountable
Executive regarding implementation of
mitigations recommended by the Safety
Committee. As a preliminary matter,
FTA agrees with the commenters who
opined that the Accountable Executive
must implement safety risk mitigations
that are included in the ASP. Section
673.5 of FTA’s 2018 PTASP final rule
clearly conveys that the Accountable
Executive is ‘‘ultimately responsible for
carrying out the Public Transportation
Agency Safety Plan of a public
transportation agency.’’ FTA
understands commenters’ concern about
aligning authority and accountability.
However, the Accountable Executive
must implement an ASP that has been
duly approved by the agency’s Safety
Committee and Board of Directors. If the
approved ASP includes mitigations, the
Accountable Executive must carry them
out. This is consistent with the 2018
final rule and FTA’s current practice.
Further, 49 U.S.C. 5329(d)(1)(I)
requires transit agencies to include
mitigations in their ASP related to the
safety risk reduction program, including
mitigations related to vehicular and
pedestrian accidents involving buses
and assaults on transit workers. To
harmonize the regulation with this
statutory requirement, FTA is adopting
§§ 673.11(a)(7)(iv) and 673.25(d)(5),
which convey that the ASP must
include safety risk reduction program
mitigations when recommended by the
Safety Committee based on a safety risk
assessment. FTA refers readers to
Section II.G of this preamble for more
discussion about these changes.
Due to the above, FTA agrees with the
commenters who argued that proposed
§ 673.23(d)(1) is contrary to statute. This
proposal stated that the Accountable
Executive ‘‘receives and considers’’
mitigations from the Safety Committee.
Given that the Accountable Executive is
ultimately responsible for implementing
the transit agency’s approved ASP, FTA

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

agrees that the Accountable Executive
must implement the safety risk
reduction program mitigations included
in the ASP under § 673.11(a)(7)(iv).
While FTA acknowledges that the
Accountable Executive retains control
or direction over the human and capital
resources needed to maintain an
agency’s ASP under § 673.5, the
Accountable Executive does not have
authority under part 673 to decline to
implement elements of an approved
ASP. Accordingly, FTA is adopting
revisions to § 673.23(d)(1) to convey that
the Accountable Executive must
implement the safety risk reduction
program mitigations included in the
ASP under § 673.11(a)(7)(iv).
FTA notes that 49 U.S.C. 5329(d) does
not require that the ASP include
mitigations unrelated to the safety risk
reduction program. As such, and in
response to comments, FTA also has
revised § 673.23(d)(1) to clarify the
Accountable Executive’s role with
respect to these other mitigations. This
provision requires that the Accountable
Executive of a large urbanized area
provider receives and must consider all
other safety risk mitigations that are
recommended by the Safety Committee
(i.e., mitigations not related to the safety
risk reduction program). The
Accountable Executive may decide not
to implement these mitigations,
consistent with the Accountable
Executive’s authority over the control or
direction over the human and capital
resources needed to develop and
maintain the ASP. However, FTA
believes that the Accountable Executive
should articulate a reasoned explanation
for this decision. Accordingly, FTA has
added § 673.25(d)(6) to the regulation,
which provides that if the Accountable
Executive declines to implement such a
mitigation, the Accountable Executive
must prepare a written statement
explaining this decision consistent with
the PTASP recordkeeping requirements
at § 673.31. The Accountable Executive
then must submit and present this
explanation to the Safety Committee
and the Board of Directors or equivalent
entity for discussion. FTA believes that
this strikes a reasonable balance
between the Accountable Executive’s
ultimate accountability for safety
performance and the Safety Committee’s
vitally important role in the SMS
process. FTA emphasizes that the transit
agency may opt to include these other
mitigations in the ASP if it wishes to do
so. As explained above, the Accountable
Executive would then be required to
implement these mitigations because
they are included in the ASP.
Regarding the PTASP FAQ mentioned
by commenters, FTA rescinded the FAQ

PO 00000

Frm 00021

Fmt 4701

Sfmt 4700

25713

in 2022. Transit agencies should not
rely upon it as current guidance
regarding the role of the Accountable
Executive and Safety Committee.
Focus of the Safety Committee
Comments: Several commenters
discussed the focus of the Safety
Committee. Eight commenters expressed
concern that the Safety Committee or its
activities could be used as a negotiating
tactic in collective bargaining or other
labor negotiation activities. Some of
these commenters asserted this could
delay approval of an ASP and therefore
impact an agency’s ability to receive
section 5307 funding. One commenter
urged FTA to prohibit use of the Safety
Committee to conduct contract
negotiations or other collective
bargaining activities.
Five commenters stated that FTA
should require that Safety Committees
focus exclusively on safety. One of these
commenters suggested FTA do so by
revising the definition of ‘‘Safety
Committee’’ in § 673.5.
Response: FTA agrees that the Federal
statutory responsibilities of Safety
Committees, as outlined in 49 U.S.C.
5329(d), focus on safety at the transit
agency. FTA’s definition of ‘‘Safety
Committee’’ at § 673.5 reflects that the
Safety Committee is a joint labormanagement committee ‘‘on issues
related to safety.’’ FTA believes that this
definition sufficiently sets forth the
focus of the Safety Committee and
therefore declines to make any further
changes to the regulation. However,
FTA will not prohibit the Safety
Committee from addressing issues with
a nexus to safety outside of those
identified in this final rule. FTA
appreciates that some safety concerns
may overlap with labor-related concerns
and that individual Safety Committees
will establish their own protocols for
addressing safety-related business.
Further, FTA appreciates that transit
agencies may need to amend the terms
of their collective bargaining agreements
or other labor agreements to enable
transit workers to participate in the
Safety Committee.
Relationship to Safety Departments
Comments: Several commenters
expressed concern that certain safetycritical tasks assigned to the Safety
Committee in § 673.19(d) should be the
responsibility of Safety Department
representatives. Two commenters
expressed concern regarding the
practicality of having frontline transit
worker representatives complete the
work described in § 673.19(d).
Three commenters opposed FTA’s
proposed language in § 673.19(d) that

E:\FR\FM\11APR2.SGM

11APR2

25714

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

khammond on DSKJM1Z7X2PROD with RULES2

the Safety Committee conducts
activities to ‘‘oversee’’ the agency’s
safety performance, expressing that this
is the responsibility of the agency’s
Chief Safety Officer and Accountable
Executive. These commenters suggested
that FTA replace the word ‘‘oversee’’
with alternative language. One
commenter further urged FTA to clarify
that the decisions of an agency’s Safety
Department are not subject to review by
the Safety Committee. One commenter
urged FTA to clarify that ‘‘oversee’’
refers only to safety performance and
advising on safety initiatives.
Response: FTA appreciates the
concerns about the potential for overlap
between the Safety Committee and
Safety Department and the practicality
of having frontline transit workers
complete the work described in
§ 673.19(d). However, these Safety
Committee responsibilities are
statutorily required.
FTA notes that the Safety Committee
does not replace the transit agency’s
Safety Department but rather augments
the transit agency’s SMS by supporting
Safety Risk Management and Safety
Assurance processes such as the safety
risk reduction program. The Safety
Committee has several statutorily
defined responsibilities to oversee safety
performance through review and
approval of the ASP, setting annual
safety performance targets for the safety
risk reduction program, and supporting
the operation of the transit agency’s
SMS. Therefore, FTA does not agree that
it is appropriate to replace ‘‘oversee’’
with alternative language.
This final rule does not eliminate any
existing authority, accountability, or
responsibility established for the
Accountable Executive, Safety
Department, or Chief Safety Officer.
FTA reminds commenters the Safety
Committee has an equal number of
management representatives, which
may include members of the Safety
Department.
Monitoring Safety Committee
Performance
Comments: Some commenters
expressed concern about holding Safety
Committees accountable for fulfilling
their responsibilities. Two of these
commenters asked who has ultimate
responsibility for the Safety Committee
and for overseeing its performance. One
commenter further asked who is
responsible for maintaining compliance
with Federal requirements in the
absence of consensus in the Safety
Committee. Another commenter argued
that the transit agency should have
ultimate responsibility for the Safety
Committee. One commenter urged FTA

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

to add Safety Committee accountability
measures or best practices to the final
rule, noting that certain Federal funding
is contingent on having an ASP that is
approved by the Safety Committee.
Response: FTA appreciates the
questions and suggestions from
commenters on Safety Committee
accountability. FTA reiterates that the
Safety Committee’s responsibilities are
required by statute. Per § 673.23(d)(3),
transit agencies must identify the
authorities, accountabilities, and
responsibilities necessary for the Safety
Committee, as they relate to the
development and management of the
transit agency’s SMS. FTA believes that
transit agencies are capable of ensuring
appropriate accountability for Safety
Committee members and § 673.23(d)(3)
provides appropriate flexibility for them
to do so. FTA notes that the existence
of the Safety Committee does not
eliminate any existing authority,
accountability, or responsibility
established for the Accountable
Executive, Safety Department, or Chief
Safety Officer. FTA understands that
disputes might occur on the Safety
Committee and addresses this issue in
Section II.F.6 of this preamble below.
6. Decision-Making and Dispute
Resolution
Comments: Several commenters
offered comments and proposed
requirements for Safety Committee
decision-making processes.
FTA received comments asking for
clarification regarding ‘‘voting’’ as the
mechanism for approving an ASP. One
transit agency noted the word ‘‘vote’’ in
proposed § 673.19(c) implies that Safety
Committees must approve the ASP
through voting, which is contrary to the
commenter’s previous understanding.
This commenter noted that voting is
workable if the Accountable Executive
is the tiebreaker. Two labor commenters
stated that Safety Committees should be
required to use a one-person-one-vote
system with majority rule or another
voting system.
In contrast, one transit agency stated
that FTA should remove the word
‘‘vote’’ from § 673.19(c), arguing that
voting increases burden and the
likelihood of conflict and that Safety
Committees should be permitted to
establish their own decision-making
processes.
FTA received several comments
voicing opinions regarding Safety
Committee tiebreaking and dispute
resolution mechanisms; these
commenters noted that deadlocks are
likely given that committees are
comprised of equal numbers of
management and transit worker

PO 00000

Frm 00022

Fmt 4701

Sfmt 4700

representatives. FTA received one
comment asking what to do if the Safety
Committee could not come to an
agreement.
Several commenters shared feedback
on FTA’s proposal in § 673.19(c)(7),
which would require the ASP to include
procedures on how the Safety
Committee will manage disputes and tie
votes to ensure it carries out its
operations. Five commenters stated that
FTA should require a specific
tiebreaking mechanism in the final rule,
with one commenter noting that leaving
this dispute resolution process up to the
transit agency could lead to confusion
and inequity. Several commenters,
including transit agencies and a transit
industry association, either suggested
that FTA designate the Accountable
Executive or Chief Safety Officer as the
tiebreaker for the Safety Committee.
One of these commenters stated that
having the Accountable Executive as the
tiebreaker ensures the Accountable
Executive remains accountable and that
Federal funds are protected.
FTA received several comments,
including from labor organizations and
certain members of Congress, arguing
that the Accountable Executive must not
act unilaterally as a tiebreaker for the
Safety Committee. Commenters stated
that designating a member of
management as a tiebreaker would
circumvent the requirement for equal
representation on the Safety Committee
and that FTA should establish a fair and
consistent process that maintains the
power balance between management
and frontline transit workers. These
commenters urged FTA instead to
require transit agencies to use the
dispute resolution procedure in the
transit agency’s collective bargaining
agreement or some other mutually
agreed-upon process.
One commenter also suggested that
FTA require nonunionized transit
agencies to establish a process to send
Safety Committee disputes to a neutral
third party decisionmaker.
One commenter noted it would be
problematic to send tie votes to a thirdparty decision-maker selected only by
one side or to allow a committee chair
to break ties. Two other commenters
opposed sending disputes to a neutral
arbitrator or mediator, stating that third
party neutrals might not have
appropriate background knowledge to
address the issue and that this would be
a lengthy process.
One commenter requested
clarification regarding who will write
the dispute resolution process and how
it will be approved and noted that if the
process is subject to labor-management
agreement there could be two deadlocks

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
instead of one. One commenter stated
that in the event of deadlock with
respect to the dispute resolution
procedures, the Accountable Executive
should be the tiebreaker in that one
specific scenario only.
Two commenters requested that FTA
provide guidance on Safety Committee
dispute resolution best practices. One
commenter recommended that FTA
convene a national working group with
transit labor and management
representatives to establish these best
practices and requested that FTA
provide a sample procedure or
workflow for Safety Committees to use
to resolve disputes.
Response: FTA acknowledges the
comments received expressing opinions
on Safety Committee voting processes.
FTA carefully considered all such
comments and the associated concerns,
including the varied implications of
different voting systems and the
potential conflicts surrounding tie votes.
In this final rule, FTA is not mandating
a specific mechanism for Safety
Committee decision-making and has
removed the word ‘‘voting’’ from
§ 673.19(c).
However, FTA agrees with
commenters that Safety Committees
need an agreed-upon decision-making
process. It is therefore requiring at
§§ 673.19(c)(6) and (8) that Safety
Committee procedures include how the
committee will reach and record
decisions and manage disputes to
ensure the Safety Committee carries out
its operations. Safety Committees may
decide to adopt a voting mechanism, but
FTA is not requiring them to do so. This
will provide each Safety Committee the
flexibility to adopt the decision-making
mechanism that best works for them.
In response to comments requesting
clarification about disputes, FTA also
has revised § 673.19(c)(8) to clarify that
the Safety Committee may use the
dispute resolution or arbitration process
from the transit agency’s collective
bargaining agreement, or a different
process that the Safety Committee
develops and agrees upon. As noted
above, FTA is not mandating a specific
mechanism or avenue for resolving
disputes, as FTA has determined that
transit agencies and their Safety
Committees should have flexibility to
establish the procedure best suited to
their unique environments. Agencies
may decide to leverage existing dispute
resolution processes, such as sending
disputes to a neutral third-party or using
the dispute resolution or arbitration
process from the transit agency’s
collective bargaining agreement, but
they are not required to do so.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

However, FTA also revised
§ 673.19(c)(8) to make clear that the
Accountable Executive, may not be the
tiebreaker to resolve Safety Committee
disputes. FTA has defined the
Accountable Executive to have the
responsibility for signing the ASP prior
to it being sent to the Safety Committee
for approval. Additionally, the
Accountable Executive is ultimately
responsible for implementing the transit
agency’s approved ASP. Because of
these unique roles within the PTASP
process, if the Accountable Executive
also were to serve as the tiebreaker, it
impermissibly would give them
authority to perform the roles prescribed
by Congress for Safety Committees,
including approval of an ASP,
establishment of performance targets for
the risk reduction program, and
determination of risk reduction program
mitigations for inclusion in the ASP.
See 49 U.S.C. 5329(d)(1)(A) and (I) and
(d)(4)(A).
FTA agrees that the dispute resolution
process must be agreed upon by the
members of the Safety Committee using
the Safety Committee procedures in
§ 673.19(c)(6) to reach and record
decisions and subject to the provisions
in § 673.19(c)(8). The ASP and any
documents incorporated by reference
that are necessary for fulfilling PTASP
requirements, including the Safety
Committee procedures, are subject to
the Safety Committee’s review through
the annual ASP review and approval
process. FTA also strongly encourages
transit agencies and Safety Committees
to work collaboratively to establish
these procedures prior to the ASP
approval process.
FTA appreciates the comments
requesting additional guidance and will
consider actions relating to Safety
Committee decision-making in the
future.
7. Agency Safety Plan Approval
Comments: Eight commenters
expressed concern with requiring the
Safety Committee to approve the ASP,
as set forth in proposed §§ 673.19(d)(1)
and 673.11(a)(1).
Three commenters stated the Safety
Committee should not be involved in
ASP approval process and argued that
labor should participate in the
development process in an advisory role
instead. Two of these commenters asked
FTA to mirror the language regarding
Safety Committee ASP review on
proposed § 673.17(b)(1), which states
the ASP is developed in cooperation
with frontline transit workers. Three
commenters suggested that the final rule
state that the Safety Committee reviews
‘‘draft’’ ASP language, arguing that the

PO 00000

Frm 00023

Fmt 4701

Sfmt 4700

25715

Safety Committee has no authority to
change policies or procedures
summarized or referenced in the ASP.
Similarly, a separate commenter asked
FTA to clarify that the underlying
drafting of the ASP most likely will be
completed by agency management or
safety consultants, not the Safety
Committee. One commenter noted that
Safety Committee approval of the ASP
adds burden for transit agencies without
any additional funding support.
In contrast, FTA received other
comments supporting Safety Committee
approval of the ASP. Comments from
members of Congress and a labor
organization stated that congressional
intent was for Safety Committees to
have more than an advisory role, with
the labor organization stating that
Congress intended Safety Committees to
be delegated decisions on safety matters.
One commenter stated that transit
agencies do not always provide
sufficient time for Safety Committee
members to review ASP updates, which
means that Safety Committees cannot
reasonably and adequately approve the
ASP.
Two commenters stated that the rule
should establish explicit requirements
for how Safety Committees approve
ASPs.
Response: FTA acknowledges the
commenters that expressed concern
with the requirement for Safety
Committees to review and approve
ASPs. FTA notes that ASP approval is
a key Safety Committee responsibility
required by statute at 49 U.S.C.
5329(d)(1)(A). FTA reiterates that per
the statute, the Safety Committee’s role
is not merely advisory.
FTA declines to establish more
specific requirements for how Safety
Committees approve ASPs. As
discussed in section II.F.6 of this
preamble, FTA is adopting requirements
at § 673.19(c)(6) for documenting how
the Safety Committee will reach and
record decisions and at § 673.19(c)(8) for
documenting how the Safety Committee
will manage disputes to ensure it carries
out its operations. FTA is providing
each Safety Committee flexibility to
adopt the decision-making mechanism
that best works for them. FTA
understands the concern regarding
Safety Committees potentially not
having sufficient time to review the
ASP. Section 673.11(a) requires the
transit agency to establish a timeline for
the annual ASP review and update.
Further, § 673.19(c)(9) requires that
Safety Committee procedures address
how the committee will carry out its
responsibilities, which includes ASP
approval. FTA encourages transit
agencies and Safety Committees to

E:\FR\FM\11APR2.SGM

11APR2

25716

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

khammond on DSKJM1Z7X2PROD with RULES2

establish the ASP update timeline
cooperatively and to ensure that the
timeline permits each applicable group
sufficient time to review the ASP and
any referenced materials.
The Bipartisan Infrastructure Law
established a role for the Safety
Committee to approve the ASP as one
vitally important step in the ASP
approval process. This final rule reflects
the critical role Congress established for
the Safety Committee.
8. Access to Agency Data and Resources
Comments: FTA received several
comments related to the Safety
Committee’s access to transit agency
data. Several commenters stated that
FTA should require transit agencies to
provide Safety Committees access to all
safety data available to the transit
agency, including safety event
information and any information that is
reasonably relevant for accomplishing
the Safety Committee’s responsibilities.
One commenter stated that this
information should include each hazard
report that a transit agency receives
from workers and any action taken in
response. One commenter stated that
this should include any information
described in § 673.31 when requested by
the Safety Committee. This commenter
argued that a Safety Committee cannot
meaningfully review or approve an ASP
without access to this information.
Another commenter noted that it is
difficult for labor representatives to be
partners in solving safety issues if the
Safety Committee does not have quick
access to relevant information. One
local union stated anecdotally that its
transit agency does not permit the
Safety Committee to access certain
information unless the committee files
an information request.
Two commenters stated that FTA
should require transit agencies to allow
Safety Committees to inspect all transit
system vehicles and properties at least
once per year and to inspect any vehicle
or workspace involved in an accident,
assault, or other serious safety event
within 48 hours of the incident. One
local union noted anecdotally that its
transit agency has not permitted the
Safety Committee to conduct walkthrough inspections of transit property.
Response: FTA appreciates that the
Safety Committee’s work will require
transit agencies and Safety Committees
to agree upon the appropriate level of
access the Safety Committee needs to
perform its work. Section 673.19(c)(5)
requires that Safety Committee
procedures address how the committee
will access transit agency information,
resources, and tools to support its
deliberations. This provision also

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

requires that the procedures address
how the Safety Committee will access
submissions to the agency’s transit
worker safety reporting program. While
the requirement at 673.19(c)(5) does not
require a transit agency to provide the
Safety Committee with every piece of
data and information maintained by the
agency, the requirement is inclusive of
all data reasonably necessary for the
Safety Committee to perform its
statutorily required responsibilities.
Transit agencies must provide access to
information necessary for the Safety
Committee to execute their duties
established under 49 U.S.C. 5329(d),
and as described in this part and in the
transit agency’s ASP.
FTA disagrees that it is appropriate
for FTA to require transit agencies to
permit Safety Committee access to
specific locations for inspections.
Congress granted specific RTA
inspection authority to State Safety
Oversight Agencies but has not
established this authority for Safety
Committees. Further, transit agency
safety departments typically conduct
these types of activities. FTA does not
expect a transit agency’s Safety
Committee to replace a transit agency’s
safety department. As noted above, FTA
expects that Safety Committees will
have access to information reasonably
necessary for them to fulfill their
statutory responsibilities. This may
include information related to
inspections, to the extent it is
reasonably necessary for the Safety
Committee to identify and recommend
mitigations under 49 U.S.C.
5329(d)(5)(A)(iii)(I).
G. Section 673.20—Safety Risk
Reduction Program
1. Applicability
Comments: One commenter
supported limiting the applicability of
the safety risk reduction program to
large urbanized area providers. One
commenter asked whether the safety
risk reduction program applies only to
bus modes. Another commenter noted
that the safety risk reduction program
does not appear to address historic
streetcars and other open cab rail
vehicles.
Response: FTA appreciates the
support from commenters. FTA notes
that the definition of ‘‘large urbanized
area provider’’ in this rule at § 673.5
does not distinguish modes of service.
The safety risk reduction program
requirements therefore apply to any
transit agency that meets the definition
of a large urbanized area provider. The
safety risk reduction program includes
all modes of service except for modes

PO 00000

Frm 00024

Fmt 4701

Sfmt 4700

that are excluded from PTASP generally
under § 673.11(e) (i.e., passenger ferries
regulated by the United States Coast
Guard and rail fixed guideway public
transportation service regulated by the
Federal Railroad Administration). The
safety risk reduction program applies to
historic streetcar service provided by
large urbanized area providers, to the
extent this service is otherwise subject
to the PTASP regulation.
2. Connection to SMS
Comments: Several commenters
sought clarification about FTA’s
expectations for the safety risk
reduction program.
Many commenters, including transit
agencies and an SSOA, asked FTA to
clarify the relationship between the
safety risk reduction program and FTA’s
existing SMS requirements. One
commenter recommended that FTA
clarify that the safety risk reduction
program is a prescribed example of the
Safety Risk Management (SRM) process
under SMS. Another commenter argued
that if the safety risk reduction program
is just a component of the SRM process,
then FTA should consider including it
in the SRM section of the regulation
(§ 673.25). Relatedly, two commenters
requested that FTA clarify the difference
between safety risk reduction and safety
risk mitigation.
Response: FTA appreciates the
comments identifying the connection
between the safety risk reduction
program and a transit agency’s SMS
processes. FTA agrees that a safety risk
reduction program operates within an
agency’s SMS to support efforts to
manage safety. FTA clarifies that it does
not intend for safety risk reduction
programs to exist outside of or separate
from a transit agency’s SMS.
In the NPRM, FTA proposed that all
safety risk reduction program
requirements would be in a distinct
section of the regulation (§ 673.20). In
response to comments, FTA has
determined that this organization
creates confusion by obscuring the
program’s relationship with SMS. To
clarify this understanding and to ensure
the consistent application of SMS
processes, FTA has removed § 673.20
from the final rule and has relocated
these provisions to other sections of the
regulation, including the Safety Risk
Management and Safety Assurance
sections. FTA believes this change
reinforces that a safety risk reduction
program is not separate from SMS and
that required safety risk reduction
program elements and activities should
operate within the Safety Risk
Management and Safety Assurance
components of SMS.

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
Accordingly, provisions regarding
identifying mitigations for the safety
risk reduction program are now located
in the Safety Risk Mitigation section of
the regulation at §§ 673.25(d)(3) through
(d)(6). Provisions regarding continuous
improvement requirements for the
safety risk reduction program are now
located in the Safety Assurance section
at §§ 673.27(d)(1) through (d)(3).
In addition, FTA has located the
provisions setting forth the general
elements of the safety risk reduction
program to § 673.11(a)(7). FTA believes
that this is the most appropriate location
because § 673.11 sets forth the elements
that a transit agency’s ASP must
contain. As mentioned previously, the
safety risk reduction program must be in
the ASP per 49 U.S.C. 5329(d)(1)(I).
3. Safety Performance Targets

khammond on DSKJM1Z7X2PROD with RULES2

General
Comments: Several commenters,
including an FTA webinar participant,
requested additional guidance on how
Safety Committees set safety
performance targets for the safety risk
reduction program. One commenter
asked that FTA set specific guidelines
for how to set targets. Another
commenter recommended that Safety
Committees should advise the transit
agency on safety performance targets but
should not set them, given that the
targets have financial consequences for
the transit agency if they are missed.
One commenter argued that Safety
Committee deadlocks or setting
unattainable targets could require transit
agencies to spend funding on
mitigations that are inappropriate or
outside of an agency’s budget.
Several comments pertained to
approval of safety risk reduction
program performance targets. One
commenter urged FTA to require that
the Accountable Executive approve the
performance targets. One commenter
stated that both labor and management
should certify their satisfaction with the
safety performance targets, as well as
whether the targets have been met. A
separate commenter stated that FTA
should require management to adopt
any safety performance targets that the
Safety Committee sets.
Another commenter noted that setting
safety performance targets to reduce
vehicular and pedestrian accidents
involving buses through the safety risk
reduction program would require data
from local and State highway agencies
and railroad companies. The commenter
stated that this would add considerable
burden but would be effective and
would increase interagency cooperation.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Response: FTA appreciates that Safety
Committees will need to work carefully
to develop safety performance targets
that are reasonable and attainable.
Although FTA does not believe
rulemaking is the appropriate forum for
additional guidance, it will consider
issuing technical assistance on setting
safety performance targets in the future.
Further, as required by statute, FTA
defines required safety performance
measures for the safety risk reduction
program in the National Safety Plan.
FTA notes that per 49 U.S.C.
5329(d)(4), the Safety Committee is the
entity required by statute to set the
safety performance targets for the safety
risk reduction program. The Safety
Committee’s role is not merely to
‘‘advise’’ on the performance targets, but
rather to set them.
FTA acknowledges the comments
recommending FTA establish additional
requirements for approval of safety
performance targets for the safety risk
reduction program. FTA appreciates the
recommendations and has carefully
considered each but declines to make
any changes in response. FTA notes
that, pursuant to 49 U.S.C. 5329(d)(1)(F)
safety performance targets must be
included in the ASP, which is then
approved by the Safety Committee and
transit agency’s Board of Directors or
equivalent entity. This approval process
incorporates the perspectives of both
frontline transit worker and transit
agency management representatives, as
well as the Board of Directors. Because
the PTASP regulation requires the ASP
to undergo annual review and approval,
and Safety Committee approval of the
ASP is part of the annual review and
approval process, FTA does not believe
that an additional approval process for
safety performance targets is necessary.
In addition, FTA believes that the equal
representation of labor and management
on the Safety Committee sufficiently
addresses the commenter’s concern that
the Safety Committee might set
unattainable performance targets. FTA
also notes that the safety set-aside is a
minimum amount that a transit agency
must spend on safety related projects.
As discussed in section II.F.5 of this
preamble, the rule does not establish
Accountable Executive veto power over
the contents of the ASP. The
Accountable Executive is ultimately
responsible for carrying out the ASP
that has been approved by the Safety
Committee and the transit agency’s
Board of Directors, including safety
performance targets.
In response to the comment that data
would be required from local and State
highway agencies and railroad
companies to set safety performance

PO 00000

Frm 00025

Fmt 4701

Sfmt 4700

25717

targets, FTA notes that the required
safety performance measures for the
safety risk reduction program are
defined in FTA’s National Safety Plan
and only require data that transit
agencies are already required to report
to the NTD. A transit agency will not
need to gather additional data from local
and State highway agencies and railroad
companies to set safety performance
targets for these required measures.
Three-Year Rolling Average
Comments: Several comments
pertained to the requirement to set
safety performance targets for the safety
risk reduction program based on a threeyear rolling average of NTD data. One of
these commenters recommended that
Safety Committees should simply be
given the three-year rolling average
instead of establishing the safety
performance target, arguing that there is
no need for the Safety Committee to
establish the target under FTA’s
proposed language. This commenter
further asked whether the Safety
Committee is permitted to select a target
higher or lower than the three-year
rolling average. Two commenters
suggested that FTA encourage Safety
Committees to use existing data from
other processes, such as SSOA and
internal agency reviews, to determine
whether a transit agency has made
progress toward meeting its safety
performance targets.
Three commenters expressed concern
regarding setting targets using a threeyear rolling average of NTD data when
the industry has not previously tracked
the related metrics or has tracked the
metrics under different thresholds. One
of these commenters urged FTA to
communicate to SSOAs that transit
agencies do not need to set safety
performance targets for the safety risk
reduction program until they have three
years of NTD data. Two commenters
recommended that FTA require agencies
to report data based on historical NTD
assault definitions until three years of
data under the new NTD ‘‘assault on a
transit worker’’ definition is available.
One of them expressed that transit
agencies should not compare assault
data using more than one metric, as this
could lead to inaccuracies. Another
commenter noted that the public might
oppose an agency setting a fatality target
higher than zero based on a 3-year
rolling average of NTD data; however,
setting a target at zero might be
unattainable.
Response: FTA appreciates the
feedback received by commenters
regarding the statutory requirement for
Safety Committees to set safety
performance targets for the safety risk

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

25718

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

reduction program using a three-year
rolling average of NTD data. The statute
requires at 49 U.S.C. 5329(d)(4)(A) that
Safety Committees set these targets
‘‘using a 3-year rolling average of the
data submitted’’ to the NTD. FTA
interprets this to mean Safety
Committees must base their target on
the three-year rolling average. To reflect
an annual reduction, the safety
performance target must be set below
the three-year rolling average. However,
Safety Committees have flexibility
regarding the amount of annual
reduction defined by their targets, as
long as the methodology uses a threeyear rolling average of data reported to
the NTD and the targets reflect an
annual reduction. For example, a Safety
Committee may decide to set a target
that is a 5% reduction from the previous
three-year rolling average. Alternatively,
a Safety Committee may set a target that
represents an annual reduction of 10
injuries from the previous three-year
rolling average. FTA therefore declines
to adopt a requirement for the Safety
Committee merely to be ‘‘given’’ the 3year rolling average as the target. This
would undermine the Safety
Committee’s statutory role in setting
these targets and be contrary to the
statute.
In response to the commenters that
suggested that FTA encourage Safety
Committees to use existing data from
other processes to support safety
performance measurement, FTA agrees
that a range of monitoring techniques
can be useful for assessing progress
towards reaching established safety
performance targets, including existing
processes identified by the commenter
such as internal safety reviews and
SSOA reviews. FTA notes that
§ 673.19(d)(3)(iii) establishes the
responsibility for Safety Committees to
identify safety deficiencies, including
any instance where the transit agency
did not meet an annual safety
performance target set for the safety risk
reduction program. Transit agencies and
their Safety Committees define the
processes they will use to monitor safety
performance and progress toward targets
and instances where the agency does
not meet an established safety
performance target.
FTA appreciates that several transit
agencies may not previously have
reported certain metrics and therefore
do not have three years of historical
NTD data on which to base their safety
performance targets. FTA proposed in
the NPRM that Safety Committees will
not be required to set safety
performance targets for the safety risk
reduction program until the agency has
been required to report three years of

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

data to the NTD corresponding to such
performance measure. FTA is adopting
this proposal in the final rule without
change. FTA also intends to
communicate this to transit agencies
and SSOAs through guidance and
technical assistance.
FTA acknowledges the two
commenters that recommended FTA
require agencies to report data based on
historical NTD definitions until three
years of data under the new NTD
‘‘assault on a transit worker’’ definition
is available. As explained above, this
final rule incorporates the statutory
requirement that Safety Committees use
a three-year rolling average of data
reported to the NTD. Therefore, target
setting for a safety risk reduction
program performance measure would
begin only once an agency has been
required to report data to the NTD for
three years corresponding to such
performance measure. In response to the
comment about public perception of a
non-zero safety performance target, FTA
notes that Safety Committees are
statutorily required to set safety
performance targets using a three-year
rolling average of data reported by the
transit agency to the NTD and that this
may mean establishing safety
performance targets that are zero or nonzero.
Annual Reduction
Comments: Some comments related to
FTA’s statement in the preamble of the
NPRM that safety performance targets
for the safety risk reduction program
must reflect an annual reduction. One
commenter asked whether setting a
target that reduces the rate of increase
would count as a ‘‘reduction.’’
Two commenters noted that safety
performance typically ebbs and flows,
particularly at smaller transit agencies.
These commenters argued that some
variation is mere ‘‘noise,’’ thus agencies
should not be expected to have their
safety performance targets reflect a
continual reduction every year. One of
these commenters stated that requiring
an annual reduction might incentivize
transit agencies to underreport safety
events to the NTD. In addition, this
commenter expressed concern that
SSOAs and FTA might use this
requirement as a justification to develop
corrective action plans or other
enforcement action.
Another commenter expressed
confusion about FTA’s statement in the
NPRM that Safety Committees have
flexibility to determine the amount of
annual reduction defined by the targets,
stating that this seems inconsistent with
FTA’s role in establishing performance

PO 00000

Frm 00026

Fmt 4701

Sfmt 4700

measures through the National Safety
Plan.
Response: In response to the
commenter that asked whether setting a
target that reduces the rate of increase
would count as an annual ‘‘reduction’’
for purposes of the target setting
requirement, FTA notes that reducing
the rate of increase does not necessarily
result in an actual reduction. Therefore,
a target that uses a reduction in the rate
of increase would not necessarily meet
the requirement to establish a target that
requires an actual reduction. As
described earlier, the safety performance
targets set by the Safety Committee for
the safety risk reduction program must
reflect an annual reduction in the
associated safety performance measure.
However, FTA agrees that safety
performance typically ebbs and flows,
particularly at smaller transit agencies
and notes that failure to meet a safety
performance target set for the safety risk
reduction program does not reflect a
failure of safety management at the
transit agency. Rather, the safety risk
reduction program helps direct safety
resources based on safety performance.
FTA acknowledges the commenter
that raised a concern that requiring an
annual reduction could incentivize
transit agencies to underreport safety
events to the NTD. All transit agencies
that are recipients or subrecipients of
section 5307 funds are statutorily
required to submit data to the NTD in
uniform categories. Failure to report
data in accordance with NTD
requirements may result in a transit
agency being ineligible to receive
certain funding under 49 U.S.C. chapter
53.
This final rule does not establish any
SSOA safety performance measurement
requirements or requirements relating to
corrective action plans or SSOA
enforcement. FTA encourages the
commenter to refer to 49 CFR part 674
for SSO Program requirements.
However, FTA notes that this final rule
does not limit or restrict existing FTA or
SSOA enforcement authority.
FTA acknowledges the commenter
that expressed confusion about FTA’s
statement in the NPRM that Safety
Committees have flexibility to
determine the amount of annual
reduction defined by the targets. The
statute requires Safety Committees to set
safety performance targets for the safety
risk reduction program requirements
‘‘using a 3-year rolling average of the
data submitted’’ to the NTD. FTA
interprets this to mean Safety
Committees do not have to set a target
that matches the three-year rolling
average, but that they must base their
target on this average. For example, a

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
Safety Committee may decide to set a
target that is a 5% reduction from the
previous three-year rolling average. FTA
notes that the Safety Committee’s role in
setting performance targets is different
from FTA’s role in establishing the
safety performance measures through
the National Safety Plan. The Safety
Committee must set targets for the
measures that FTA defines, but it has
flexibility when setting these targets, as
discussed above.

khammond on DSKJM1Z7X2PROD with RULES2

Timing of Target Setting
Comments: A few comments
pertained to the timing of setting safety
performance targets for the safety risk
reduction program. One commenter
asked FTA to explain its reasoning for
requiring these safety performance
targets to be set on an annual basis,
noting that certain actions to meet safety
performance targets could take well over
a year to implement and monitor.
Another commenter asked FTA to
clarify that Safety Committees set
forward-looking targets (i.e., for the
following year). The commenter stated
that the ASP approval timeline for many
agencies is in December, so a
requirement to set targets for a year in
which an ASP is approved is
nonsensical.
Response: FTA appreciates that
policies, procedures, or mitigations put
in place to help a transit agency achieve
a safety performance target may become
more effective over time and that a
transit agency may not see the full safety
performance benefit within one
calendar year. However, FTA believes
that an annual assessment of safety
performance targets is appropriate. This
allows transit agencies to monitor their
progress, even when their progress may
continue over multiple years. FTA
disagrees with the perspective that
because safety performance targets are
forward-looking, safety performance
targets cannot be set in the same year as
an ASP is reviewed. FTA expects an
ASP to be reviewed, updated as
necessary, and approved (if necessary)
every year. FTA also expects the Safety
Committee of a large urbanized area
provider to set safety performance
targets for the safety risk reduction
program every year. Transit agencies
may establish ASP update schedules
that coincide with Safety Committee
target setting schedules as they see fit.
4. Safety Risk Mitigations
Comments: FTA received several
comments regarding the safety risk
mitigation process for the safety risk
reduction program, including one
comment during an FTA webinar

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

expressing confusion about the
requirements.
A labor organization stated that FTA’s
proposed language in § 673.20(a)(1),
which sets forth the two statutory areas
that must be included in a safety risk
reduction program, is insufficient
because it requires programs to merely
‘‘address’’ those two topics. This
commenter and one additional
commenter urged FTA to require transit
agencies to set forth in their safety risk
reduction programs specific actions that
the transit agency will take, as
recommended by the Safety Committee,
to address the mitigation of vehicular
and pedestrian safety events involving
transit vehicles, and the mitigation of
assaults on transit workers. It also
requested that these specific actions
include project timelines.
One transit agency opposed the
identification of the two areas in
§ 673.20(a)(1), stating that FTA’s
identification of safety concerns
conflicts with SMS and an agency’s
Safety Risk Management process. This
commenter recommended that FTA
either delete the reference to the two
areas or revise the provision to allow the
transit agency to identify the top
hazards for the safety risk reduction
program.
Several commenters discussed
whether transit agencies should be
required to implement safety risk
mitigations for the safety risk reduction
program that are identified and
recommended by the Safety Committee.
Several commenters opposed FTA’s
proposed language at § 673.20(a)(4),
which would require the Accountable
Executive to implement certain
mitigations recommended by the Safety
Committee but allowed the Accountable
Executive to decline to do so if they
determine the mitigation will not
improve the agency’s overall safety
performance. FTA received two
comment letters from certain members
of Congress stating that allowing the
Accountable Executive to decline a
safety risk reduction program mitigation
recommended by the Safety Committee
is contrary to Congressional intent in
enacting the Bipartisan Infrastructure
Law. These members of Congress urged
FTA to remove this language, asserting
there is no statutory authority for transit
agency management to ignore or reject
elements of an approved ASP, including
safety risk mitigations for the safety risk
reduction program identified by the
Safety Committee. Several labor
organization commenters expressed
similar views and stated that transit
agencies must implement all safety risk
mitigations for the safety risk reduction

PO 00000

Frm 00027

Fmt 4701

Sfmt 4700

25719

program identified by the Safety
Committee.
Four commenters expressed concern
regarding the proposed requirement for
the Accountable Executive to
‘‘consider’’ specific safety risk
mitigations, as proposed at
§§ 673.20(a)(2) and (a)(3). One
commenter argued that this does not go
far enough and urged FTA to require
agencies to implement these mitigations
when directed by the Safety Committee.
Of these commenters, three supported
their view by asserting that the safety
risk reduction program is included in
the ASP. Thus, when an ASP is
approved, safety risk reduction program
safety risk mitigations are approved as
well.
Other commenters, including transit
agencies and a transit industry
association, opposed proposed
§ 673.20(a)(4) because it stated that the
Accountable Executive ‘‘must’’
implement one or more of the
mitigations recommended by the Safety
Committee. Arguments raised by these
commenters include that the provision
is (1) too prescriptive, (2) overrides the
agency’s existing SMS and safety risk
management process, (3) impinges upon
the relationship between RTAs and
SSOAs, (4) exceeds statutory
requirements, and (5) diminishes the
authority of the Accountable Executive.
These commenters argued that the
transit agency and Accountable
Executive should not be required to
implement Safety Committee
recommendations, with one stating that
mitigation implementation should be in
accordance with the agency’s hazard
matrix. One commenter recommended
replacing the word ‘‘must’’ with ‘‘shall
consider.’’
Two commenters expressed that
requiring the consideration of specific
mitigations in the safety risk reduction
program, as proposed at §§ 673.20(a)(2)
and (a)(3), is inconsistent with SMS
principles and will cause SMS to be less
scalable and flexible. One of these
commenters stated that the
identification of two safety concerns
and specific safety risk mitigations is
inconsistent with data-driven risk
assessment. The other commenter stated
that a transit agency should have
flexibility to determine mitigations
based on its SMS processes. This
commenter also asked FTA to clarify
how it will gauge compliance with the
requirement, urging FTA not to find an
agency non-compliant if a mitigation is
not appropriate for the agency’s unique
operating characteristics. Another
commenter expressed concern that the
mitigations mentioned in this provision
are not readily available and require

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

25720

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

significant testing to be fully
operational, arguing that there are no
accepted standards for these
technologies.
One commenter observed that the
preamble to the NPRM stated that
transit agencies must consider
mitigations related to assault mitigation
infrastructure and technology in any
type of transit vehicle and in transit
facilities, but § 673.20(a)(3) only
included ‘‘transit vehicles.’’
Response: FTA acknowledges the
large number of comments summarized
above related to requirements for safety
risk mitigations resulting from the safety
risk reduction program. FTA has
reviewed and thoroughly considered all
comments received.
FTA notes that the two program areas
for the safety risk reduction program
identified in § 673.20(a)(1) are
statutorily required. FTA therefore
declines to adopt the suggestion to
delete or revise them. As described in
section II.G.2 of the preamble above,
FTA is adopting the provision originally
proposed at § 673.20(a)(1) but has
relocated it to § 673.11(a)(7).
FTA did not state explicitly in the
NPRM that mitigations for the safety
risk reduction program are included in
the ASP. However, FTA agrees with
commenters that this is what the statute
requires. Specifically, 49 U.S.C.
5329(d)(1) sets forth the required
elements of a transit agency’s ASP. This
includes the safety risk reduction
program at 49 U.S.C. 5329(d)(1)(I). This
provision further requires that the safety
risk reduction program include
mitigations, including (1) measures to
reduce visibility impairments for bus
operators that contribute to accidents,
including retrofits to vehicles in
revenue service and specifications for
future procurements that reduce
visibility impairments; and (2) the
deployment of assault mitigation
infrastructure and technology on buses.
FTA therefore understands that per 49
U.S.C. 5329(d)(1)(I), the ASP must
include the safety risk reduction
program, which in turn must include
mitigations. To harmonize the
regulation with the statutory
requirement, and in response to
comments, FTA has added
§§ 673.11(a)(7)(iv) and 673.25(d)(5) to
the regulation. Together, these
provisions convey that for large
urbanized area providers, the ASP must
include mitigations for the safety risk
reduction program, including
mitigations relating to vehicular and
pedestrian safety events involving
transit vehicles or assaults on transit
workers, when identified and
recommended by a Safety Committee

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

based on a safety risk assessment. FTA
notes that this is consistent with the
standard SRM process in § 673.25(d)(1),
in which safety risk mitigations are
identified when they are ‘‘necessary as
a result of the agency’s safety risk
assessment to reduce the likelihood and
severity of the consequences.’’ However,
FTA does not agree that the ASP must
also include specific project timelines
for carrying out these mitigations.
Transit agencies may include timelines
but are not required by statute or
regulation to do so.
FTA appreciates the numerous
comments discussing whether the
transit agency must implement the
safety risk reduction program
mitigations that the Safety Committee
recommends. FTA proposed at
§ 673.20(a)(4) of the NPRM that the
Accountable Executive must implement
one or more mitigations related to
assaults and injuries to transit workers
when recommended by the Safety
Committee based on a safety risk
analysis. This provision would have
allowed the Accountable Executive to
decline to implement the mitigation if
the Accountable Executive determined
it would not improve the agency’s
overall safety performance. FTA further
stated in the NPRM preamble that the
Accountable Executive could reject a
mitigation due to its ‘‘direction over the
human and capital resources needed to
develop and maintain the ASP and . . .
ultimate accountability for the agency’s
safety performance.’’ Upon thorough
consideration of the comments received
and re-analysis of 49 U.S.C.
5329(d)(1)(I), FTA has determined that
this proposal is inconsistent with the
statute. Accordingly, FTA is adopting
several revisions to the safety risk
reduction program provisions to
harmonize the regulation with 49 U.S.C.
5329(d).
FTA agrees with the commenters who
argued that the Accountable Executive
must implement safety risk mitigations
that are included in the ASP. Given that
the statute requires a transit agency’s
ASP to include certain mitigations for
the safety risk reduction program, the
Accountable Executive must implement
these mitigations. While FTA
acknowledges that the Accountable
Executive has discretion over the
human and capital resources needed to
carry out the ASP under § 673.5, the
Accountable Executive does not have
authority to decline to implement
elements of an ASP that has been duly
approved by the agency’s Safety
Committee and Board of Directors.
FTA therefore declines to adopt
proposed § 673.20(a)(4), as it would
have allowed the Accountable Executive

PO 00000

Frm 00028

Fmt 4701

Sfmt 4700

to decline to implement certain
mitigations in a manner that is
inconsistent with the statute. FTA
instead is adopting provisions at
§§ 673.25(d)(6) and 673.23(d)(1) to set
forth the responsibilities of the
Accountable Executive regarding Safety
Committee mitigations for the safety risk
reduction program. Readers should refer
to section II.F.5 of the preamble above
for more discussion about these changes
and the role of the Accountable
Executive.
Given these revisions that FTA is
adopting in this final rule, FTA does not
agree that it is necessary to change the
word ‘‘consider,’’ as proposed in
§§ 670.20(a)(2)–(3). The word
‘‘consider’’ reflects the flexibility
inherent in SMS. Transit agencies and
their Safety Committees have flexibility
to recommend the safety risk
mitigations through the safety risk
reduction program that are appropriate
to their unique operating environments.
FTA therefore substantively adopts the
provisions originally proposed at
§§ 670.20(a)(2)–(3) but has relocated
them to §§ 673.25(d)(3)–(4), as
explained in section II.G.2 of this
preamble above.
FTA acknowledges the numerous
commenters that opposed FTA requiring
an Accountable Executive to implement
safety risk mitigations recommended by
the Safety Committee due to concerns
regarding conflict with existing SMS
principles, conflict with the authority of
the Accountable Executive, reduced
implementation flexibility, a lack of
accepted standards for the associated
technologies, and a lack of availability
of mitigations. FTA notes that this
requirement is established by statute. As
discussed in the Safety Committee
section above, 49 U.S.C. 5329(d)(1)(I)
requires the ASP to include mitigations
related to the safety risk reduction
program, including (1) measures to
reduce visibility impairments for bus
operators that contribute to accidents
and (2) the deployment of assault
mitigation infrastructure and technology
on buses when a safety risk assessment
determines such measures would be
effective at reducing associated safety
events. FTA further notes that this final
rule maintains the role of the
Accountable Executive as having
control or direction over the human and
capital resources needed to develop and
implement both the transit agency’s
ASP and the transit agency’s Transit
Asset Management Plan. Further, FTA
notes that not all safety risk mitigations
are required to be included in the ASP;
only those identified by the Safety
Committee through the safety risk
reduction program.

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
FTA also acknowledges commenters
that urged FTA to require transit
agencies to implement all safety risk
mitigations identified by the Safety
Committee as part of the safety risk
reduction program. FTA confirms that
this final rule requires the
implementation of all such safety risk
mitigations. One of the Safety
Committee’s key responsibilities under
49 U.S.C. 5329(d)(5)(A)(iii) is
‘‘identifying and recommending riskbased mitigations or strategies necessary
to reduce the likelihood and severity of
consequences identified through the
agency’s safety risk assessment.’’ As
discussed in the Safety Committee
section above, 49 U.S.C. 5329(d)(1)(I)
requires the ASP to include mitigations
related to the safety risk reduction
program, including (1) measures to
reduce visibility impairments for bus
operators that contribute to accidents
and (2) the deployment of assault
mitigation infrastructure and technology
on buses when a safety risk assessment
determines such measures would be
effective at reducing associated safety
events.
The statute does not require an agency
to include mitigations unrelated to the
safety risk reduction program in the
ASP. For any mitigations identified and
recommended by the Safety Committee
that are not included in the ASP, FTA
is requiring at § 673.23(d)(1)(ii) that an
Accountable Executive of a large
urbanized area provider receives and
must consider all other safety risk
mitigations that are recommended by
the Safety Committee. In response to the
comment regarding FTA’s evaluation of
compliance with requirements related to
safety risk mitigations established
through the safety risk reduction
program, FTA notes that it monitors
compliance with part 673 requirements
through its existing triennial review
process. However, FTA notes that
transit agencies are required to allocate
their safety set aside to address a missed
safety performance target in the safety
risk reduction program. This means that
an agency will still be required to
allocate resources in an instance of an
inappropriate or ineffective safety risk
mitigation that has not enabled the
agency to meet the associated safety
performance target. In this way, the
requirements of the safety risk reduction
program help support continuous
improvement by ensuring that
ineffective safety risk mitigations are
addressed to support improvement in
safety performance.
Regarding the inconsistency between
the preamble and regulatory text in the
NPRM regarding consideration of the
deployment of assault mitigation

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

infrastructure and technology, FTA
notes that there was an error in
proposed § 673.20(a)(3). FTA confirms
that the preamble was correct: This
requirement is intended to apply to both
transit vehicles and transit facilities and
assaults on transit workers are not
limited to assaults that occur on transit
vehicles. In response to comments, FTA
has revised this provision to include the
deployment of assault mitigation
infrastructure and technology in transit
facilities. FTA has relocated this
provision from § 673.20(a)(3) to
§ 673.25(d)(4), as discussed in section
II.G.2 of this preamble above.
5. Scope of the Safety Risk Reduction
Program
Comments: One commenter
recommended removing the word
‘‘injury’’ from the description of the
safety risk reduction program in
§ 673.20(a) and safety performance
targets in § 673.20(b). The commenter
noted that the definition of safety event
includes the term ‘‘injury,’’ so this
deletion would avoid unnecessary
repetition. Another commenter asked
for clarification of this term and
recommended that it be defined in the
same way as in the NTD.
Response: FTA acknowledges that
some safety events may result in
injuries. However, FTA disagrees that
addressing a reduction of safety events
and injuries through the safety risk
reduction program is duplicative.
Trends in injuries and injury rates may
occur distinctly from trends in safety
events and safety event rates. For
example, an agency that experiences
more severe safety event outcomes may
show increasing injury trends as
compared to its safety event trends.
Further, addressing a reduction of both
accidents and injuries is required by
statute at 49 U.S.C. 5329(d)(1)(I). FTA
agrees with the commenter that adding
a definition of ‘‘injury’ would be helpful
and that this definition should match
the one used by the NTD. FTA therefore
is adding a definition of ‘‘injury’’ to
§ 673.5, which mirrors the definition
used by the NTD.
6. Safety Set-Aside
General
Comments: Several commenters,
including during an FTA webinar, asked
for additional clarification and FTA
guidance on using the 0.75% safety setaside, as described in proposed
§ 673.20(e). Specifically, one commenter
asked for clarification about whether the
set-aside is always linked to a missed
safety performance target. The same
commenter noted that allocating the set-

PO 00000

Frm 00029

Fmt 4701

Sfmt 4700

25721

aside in the following year is
problematic, given that section 5307
funds likely already are forecasted and
budgeted in a multi-year plan. Two
commenters asked whether the safety
set-aside may be used to supplement
existing safety projects or whether it
must be used only for new safety
projects. A participant at an FTA
webinar asked whether the set-aside is
limited to capital projects. One
commenter asked for clarification on the
lifespan of the set-aside, and whether it
is subject to section 5307 grant
requirements. One commenter stated
that the set-aside amount might not be
enough for small RTAs. Two
commenters asked how transit agencies
that are not direct recipients of section
5307 funds should meet the safety setaside requirements, noting that such
agencies do not determine the transit
funding in their metropolitan areas.
Response: FTA notes that the safety
set-aside is required under 49 U.S.C.
5329(d)(4). While FTA understands the
concern regarding funding being
forecasted in a multi-year plan, FTA
does not have discretion to make the
safety set-aside optional. Per 49 U.S.C.
5329(d)(4)(B), the safety set-aside is
required of every recipient receiving
assistance under section 5307 that is
serving an urbanized area with a
population of 200,000 or more (a large
urbanized area provider). This means
that all large urbanized area providers
must allocate at least 0.75% of section
5307 funds to safety-related projects
eligible under section 5307. This
requirement exists whether the agency
misses a safety performance target under
the safety risk reduction program or not.
In an instance where a large urbanized
area provider does not meet a safety
performance target established under
the safety risk reduction program, the
safety set-aside must be used on projects
that are reasonably likely to assist the
agency in meeting the safety
performance target in the future, per 49
U.S.C. 5329(d)(4)(C)–(D).
In response to the commenter that
asked about safety set-aside application
to existing safety projects, FTA notes
that transit agencies may allocate the
set-aside to ongoing safety initiatives
rather than completely new safety
projects under certain circumstances.
The funds must be directed to safetyrelated activities. If the recipient is
meeting the safety performance targets
established under the safety risk
reduction program, the recipient may
continue to direct the set-aside funds to
any safety-related purpose, including
ongoing initiatives and new safety
projects.

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

25722

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

Some safety expenditures identified
to satisfy the safety requirement may
also be used to support the 1%
requirement for security-related projects
for the urbanized area (UZA) under 49
U.S.C. 5307(c)(1)(J) if the recipient can
justify the expense as both a safety and
a security expense. If the recipient is not
meeting its established safety
performance target(s) established under
the safety risk reduction program, the
recipient may continue to expend the
safety set-aside on ongoing safety
initiatives if those initiatives are
reasonably likely to assist the recipient
in meeting the missed target(s). If the
ongoing initiatives are not reasonably
likely to assist the recipient in meeting
the applicable target(s), it may be
necessary for the recipient to expend its
set-aside funds on new safety projects.
FTA acknowledges additional
comments requesting clarification on
the safety set-aside and its applications.
In response, FTA notes that the safety
set-aside establishes a minimum amount
of funds that must be allocated to safetyrelated projects eligible under section
5307. In response to the commenter that
expressed concern that the safety setaside for a small RTA may be
insufficient, FTA notes that the set-aside
is statutorily defined as ‘‘not less than’’
0.75 percent of the transit agency’s
section 5307 funds. It is therefore a
floor, not a ceiling. Transit agencies’
safety-related spending is not limited to
the amount of the safety set-aside, and
transit agencies may spend section 5307
funds on safety projects that exceed the
amount of the safety set-aside. Further,
FTA notes that this final rule does not
alter existing project funding
eligibilities under section 5307; project
expenses must be eligible for
reimbursement under section 5307.
FTA acknowledges the comments
regarding the application of safety setaside requirements for large urbanized
area providers that are not direct
recipients, and notes that most large
urbanized area providers receiving
section 5307 funds are direct recipients.
This final rule and the safety set-aside
requirements apply to all operators of
public transportation systems that are
recipients and subrecipients of section
5307 funds. It is the direct recipient’s
responsibility to ensure its subrecipients
are complying with the requirement,
similarly to how they are required to
ensure any subrecipients are complying
with other requirements, such as civil
rights or procurement requirements.
FTA plans on developing technical
assistance related to the safety set-aside,
including application to subrecipients.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Missed Safety Risk Reduction Program
Safety Performance Target
Comments: Two commenters opposed
the requirement in § 673.20(e)(3) to
allocate the set-aside when an agency
misses a safety risk reduction program
performance target. One stated that
allocation should be based on an
agency’s Safety Risk Management
process rather than a missed
performance target set by the Safety
Committee. The other commenter
requested that FTA delete the word
‘‘must’’ to give agencies flexibility to use
any funding source to address a missed
target. Two commenters urged FTA to
clarify that when an agency misses a
safety risk reduction program
performance target, it may allocate its
set-aside toward ongoing or planned
safety projects rather than just new
ones. Both commenters noted that the
results of safety investments might not
be felt immediately.
In addition, several commenters
sought clarification about set-aside
allocation requirements in
§ 673.20(e)(3). One commenter asked
whether an agency needs to specifically
call out the missed safety performance
target when it applies the set-aside and
asked for guidance for section 5307
recipients to better understand how to
address the requirement at the time of
application for section 5307 funds.
Three commenters asked whether the
entire set-aside must be allocated to
address a single unmet performance
target or if a transit agency may use this
funding to address additional safety
performance targets. Two of these
commenters noted that some safety risk
mitigations, such as a bus stop
relocation or a new Standard Operating
Procedure, may cost significantly less
than the set-aside and asked whether
the entire set-aside nonetheless must be
allocated in such cases.
One commenter asked who at the
transit agency determines whether a
project is ‘‘reasonably likely to assist the
agency in meeting the target’’ when
allocating the safety set-aside under
§ 673.20(e)(3). A separate commenter
urged FTA to give transit agencies
flexibility to identify eligible expenses
that are ‘‘reasonably likely’’ to achieve
safety performance targets, noting that
some agencies may already be working
to address the specific safety issue. One
commenter asked FTA to clarify the
meaning of a ‘‘safety related project.’’
Another commenter asked how
allocating the set-aside will work when
an agency continues to miss a safety
performance target, but the set-aside has
already been allocated to a mitigation
addressing a previously missed target.

PO 00000

Frm 00030

Fmt 4701

Sfmt 4700

One commenter asked whether the
use of safety set-aside funds in the
following fiscal year referred to the
Federal fiscal year or the transit
agency’s fiscal year.
Response: FTA acknowledges the two
commenters that opposed the
requirement in § 673.20(e)(3) to allocate
the set-aside to specific projects when
an agency misses a safety risk reduction
program performance target. However,
because these are statutory requirements
under the Bipartisan Infrastructure Law,
FTA does not have discretion to make
them optional. Further, while statute
links the allocation of the set-aside to
specific projects when an agency misses
a safety risk reduction program
performance target, FTA notes that an
agency’s Safety Risk Management
process plays a large role in the safety
risk reduction program as the means to
assess safety risk and implement safety
risk mitigations. FTA notes that this
final rule adopts requirements at
§§ 673.25(d)(3)–(6) related to the use of
Safety Risk Management processes for
the safety risk reduction program.
FTA acknowledges the commenters
seeking clarification on the ability for
transit agencies to allocate the set-aside
toward ongoing or planned safety
projects rather than just new ones when
an agency misses a safety risk reduction
program performance target. FTA notes,
as discussed in the section above, that
transit agencies may allocate the safety
set-aside to ongoing safety initiatives
rather than completely new safety
projects, to the extent they are
reasonably likely to assist the agency in
meeting the safety performance target in
the future, as required by statute. If the
initiatives are not reasonably likely to
assist the recipient in meeting the
applicable safety performance target(s),
it may be necessary for the recipient to
expend its set-aside funds on new safety
projects.
FTA also acknowledges the
commenter’s question about addressing
the set-aside at the time an agency is
applying for section 5307 funds.
Recipients must identify when they are
using the safety set-aside to address a
missed safety performance target in the
applicable grant application in TrAMS;
reserve funds to assist the recipient in
meeting any missed targets; and
document intended compliance with
the requirement at the pre-award stage.
Recipients should note the safety goal or
safety-related project in a section 5307
grant’s executive summary.
FTA appreciates the comments
received requesting clarification about
whether they must allocate the entire
set-aside to address a single unmet
performance target. FTA clarifies that if

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
the identified projects cost less than the
transit agency’s safety set-aside, the
agency may use the remaining safety
set-aside for other safety-related projects
eligible under section 5307. Transit
agencies with specific questions
regarding the use of section 5307
funding should contact their FTA
regional office.
FTA appreciates the comments
received requesting clarification about
who determines whether a mitigation is
‘‘reasonably likely’’ to assist the transit
agency in meeting the safety
performance target in the future. FTA
notes that § 673.27(d)(3)(iii) requires the
transit agency to allocate its set aside to
projects reasonably likely to assist in
meeting the missed safety risk reduction
program safety performance target in the
future. As described in § 673.19(d)(3)(i),
one of the Safety Committee’s statutory
responsibilities is identifying and
recommending safety risk mitigations,
including safety risk mitigations
associated with any instance where the
transit agency did not meet a safety
performance target for the safety risk
reduction program. FTA interprets the
identification of safety risk mitigations
by the Safety Committee under
§ 673.19(d)(3)(i) to mean that the Safety
Committee under their authority may
identify mitigations that are reasonably
likely to assist in meeting the missed
safety risk reduction program safety
performance target. FTA also notes that
under the agency’s Safety Risk
Management process, sources outside of
the Safety Committee may also identify
safety risk mitigations, such as through
a transit agency’s safety department.
FTA acknowledges the commenter’s
question about an agency that
continually misses a safety performance
target. FTA notes that the safety setaside is calculated annually based on a
transit agency’s section 5307 funding. If
an agency fails to meet a safety
performance target under the safety risk
reduction program for a second year, the
agency must again use its safety setaside for safety risk mitigations
reasonably likely to assist the transit
agency in meeting the target in the
future. FTA clarifies that the term
‘‘fiscal year’’ in this final rule refers to
the Federal fiscal year.
FTA is adopting the proposed
provisions relating to the safety setaside, but has relocated them from
§ 673.20(e) to § 673.27(d)(3), as
explained in Section II.G.2 of this
preamble above.
Compliance
Comments: One commenter asked for
clarification regarding the SSOA’s role
in overseeing the safety set-aside for

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

RTAs under their jurisdiction. Another
commenter asked how FTA will enforce
the reallocation requirement and what
FTA will review during triennial
reviews relating to this requirement.
Response: This final rule does not
establish new oversight requirements for
SSOAs related to the safety set-aside.
SSO Program requirements are
established through part 674. Further,
FTA notes that it plans to use its
existing triennial review process to
monitor compliance with part 673.
Following regulatory updates, FTA
modifies the Comprehensive Review
Contractor’s Manual used to conduct
triennial reviews to address changes to
review procedures based on new
regulatory requirements. FTA publishes
the Comprehensive Review Contractor’s
Manual upon update. For additional
discussion about FTA oversight and
enforcement, see Section II.D.2 of this
preamble.
H. § 673.23—Safety Management Policy
Comments: FTA received one
comment asking for clarification about
how the proposal to require large
urbanized area providers to establish the
necessary authorities, accountabilities,
and responsibilities for the management
of safety for the Safety Committee is
different from what transit agencies are
currently doing.
FTA received comments related to the
transit worker safety reporting program
from several commenters. Commenters
suggested that the requirements at
§ 673.23(b) should include requirements
for anonymous reporting. These
commenters expressed concern that
transit workers are reluctant to report
hazards due to fear of retaliation and
without comprehensive near-miss
reports, management cannot address
root causes adequately.
One commenter asked for an example
of when the transit worker safety
reporting program should be used for an
assault. Another commenter stated that
FTA should clarify or more narrowly
define the kinds of things that are meant
to be reported to ensure transit agencies
and workers have a clear understanding
of what exactly should be reported. One
commenter stated that it appeared that
the proposed changes would impact
Occupational Safety and Health
Administration (OSHA) whistleblower
requirements.
Response: FTA appreciates the
question regarding the proposal at
§ 673.23(d) to require large urbanized
areas providers to establish the
necessary authorities, accountabilities,
and responsibilities for the management
of safety for the Safety Committee. FTA
notes that § 673.23(d) sets forth the

PO 00000

Frm 00031

Fmt 4701

Sfmt 4700

25723

groups or individuals within a transit
agency for which the agency must
establish the necessary authorities,
accountabilities, and responsibilities for
the management of safety, as they relate
to the development and management of
the transit agency’s SMS. While transit
agencies may have already defined the
Safety Committee’s authorities,
accountabilities, and responsibilities in
their ASP in response to the enactment
of the Bipartisan Infrastructure Law, this
final rule adds the formal requirement
to part 673 and establishes specific
Safety Committee requirements in
§ 673.19, which impact the Safety
Committee’s authorities,
accountabilities, and responsibilities.
As for the comments that asked FTA
to require transit worker safety reporting
programs to include anonymous
reporting mechanisms, FTA declines to
establish anonymity requirements at
this time. As discussed in section II.M.3
of this preamble, FTA received several
responses related to its request for
information on confidential close-call/
near-miss reporting systems. FTA
thanks commenters for this feedback
and is considering this information to
inform future FTA action and technical
assistance. FTA encourages transit
agencies to consider providing ways for
transit workers to anonymously report
safety concerns and to consider
participating in third-party confidential
close-call reporting programs such as
the Close Call Data Program operated by
the Bureau of Transportation
Statistics.31
In response to the commenter who
asked for an example of when transit
workers may use a transit worker safety
reporting program to report instances of
transit worker assault, FTA requires
transit agencies at § 673.23(b) to
establish transit worker safety reporting
programs that allow transit workers to
report safety concerns, ‘‘including
assaults on transit workers.’’ FTA
expects transit worker safety reporting
programs to allow transit workers to
report any instance of an assault on a
transit worker as defined at § 673.5. FTA
declines to more narrowly define the
types of concerns that may be reported
through a transit worker safety reporting
program, as that may have the
unintended impact of limiting safety
concern reporting. In accordance with
existing SMS implementation
principles, FTA preserves the flexibility
for transit agencies to establish the
transit worker safety reporting processes
that are most effective for their
31 Bureau of Transportation Statistics (November
2023). ‘‘Close Call Data Program.’’ https://
www.closecall.bts.gov/.

E:\FR\FM\11APR2.SGM

11APR2

25724

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

operating realities. Finally, FTA does
not believe that any of the requirements
in this final rule impact OSHA
whistleblower requirements. FTA notes
that nothing in this final rule is
intended to limit a transit worker’s
ability to file an OSHA complaint.
Further, § 673.23(b) requires transit
agencies to develop and implement
transit worker reporting programs that
include protections for transit workers
who report.
I. Section 673.25—Safety Risk
Management
1. Hazard Identification
Comments: One commenter requested
that FTA expand the list of sources of
hazard identification under
§ 673.25(b)(2) to include data provided
by the agency’s Safety Committee and
data provided by transit workers
through the agency’s transit worker
safety reporting program.
One commenter requested that FTA
clarify which data and information
regarding exposure to infectious disease
transit agencies must consider as part of
the hazard identification process.
Response: FTA agrees that the list of
required sources for hazard
identification at § 673.25(b)(2) is not
comprehensive, but it is not intended to
be exhaustive. FTA notes that transit
agencies can consider other sources
such as Safety Committee
recommendations. FTA will consider
providing examples of additional hazard
identification sources in technical
assistance.
The Bipartisan Infrastructure Law
establishes a requirement at 49 U.S.C.
5329(d)(1)(D) for ASPs to address
minimizing exposure to infectious
diseases, consistent with guidelines
from the CDC or a State health
authority. This statutory requirement is
incorporated into the final rule at
§ 673.25(b)(2)(ii). Data and information
regarding exposure to infectious disease
could include, but are not limited to,
CDC or State public health authority
advisories, warnings, and
recommendations for preventing the
spread of infectious disease and best
practices identified during the COVID–
19 public health emergency.

khammond on DSKJM1Z7X2PROD with RULES2

2. Safety Risk Mitigation
For a discussion of Safety Risk
Mitigations for the Safety Risk
Reduction Program, please refer to
Section II.G.4 of the preamble above.
Comments: Several commenters
suggested that FTA consider requiring
agencies to implement specific safety
risk mitigations. One labor organization
commenter recommended several safety

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

standards regarding pedestrian safety,
operator safety, passenger safety, bus
mechanic safety, and health safety. The
commenter also requested that FTA take
specific actions in these areas, such as
bolstering funding for police programs.
Other suggestions from commenters
include crowdsourced incident
reporting systems to combat assaults on
transit workers, video surveillance
systems, and prohibitions on certain
criminal offenders using transit.
One transit agency noted that FTA
should fund pilot programs for fully
enclosed bus operator compartments to
mitigate assault risk. Relatedly, one
commenter applauded FTA’s pilot
program for bus compartment redesign.
FTA also received a comment arguing
that requiring agencies to ‘‘address’’ the
role of the Safety Committee in
§ 673.25(d)(1) is inadequate. The
commenter stated that FTA should
require transit agencies to use their
Safety Committees to identify safety risk
mitigations and other safety
improvements and require management
to act on safety risk mitigation
information and requests from the
Safety Committee and implement these
changes. This commenter also requested
that FTA add the Safety Committee to
proposed § 673.25(d)(2), which lists the
sources that transit agencies must
consider for safety risk mitigation.
Another commenter recommended that
transit agencies should use a threshold
based on a hazard matrix to decide
when safety risk mitigations should be
submitted to the Accountable Executive
to reduce the number of mitigations that
must be reviewed by the Accountable
Executive.
Response: FTA appreciates the
recommendations. FTA’s National
Safety Plan includes a list of voluntary
minimum safety standards and
recommended practices to support
mitigation of safety risk and to improve
safety performance throughout the
transit industry. FTA declines to adopt
mandatory standards or mitigations
through the PTASP rulemaking. FTA is
considering the development of certain
mandatory safety standards and will
take commenters’ suggestions into
consideration to inform potential future
FTA action, including through its
Transit Worker and Public Safety
rulemaking.
In response to the commenter who
requested that FTA fund pilot programs
for fully enclosed bus operator
compartments, FTA notes that its Bus
Operator Compartment Program
supports research projects that protect
operators from assault and improve
their view of the road through
innovative designs. FTA appreciates the

PO 00000

Frm 00032

Fmt 4701

Sfmt 4700

comment in support of this program.
FTA has launched the Transit Worker
and Rider Safety Best Practices Research
Project, which supports research to
identify public safety concerns for
transit workers and riders, determine
the most effective mitigation strategies
to minimize the safety risk associated
with those safety concerns, and promote
the implementation of those strategies.
FTA acknowledges the commenter
that argued that FTA should require
transit agencies to use their Safety
Committee to identify mitigations and
safety improvements, and that transit
agency management implement safety
risk mitigations that are recommended
by the Safety Committee. The final rule
incorporates at § 673.19(d) the statutory
requirement that Safety Committees
identify and recommend risk-based
mitigations or strategies necessary to
reduce the likelihood and severity of
consequences identified through the
agency’s safety risk assessment. As
discussed in Section II.G.4 of the
preamble above, the final rule requires
a transit agency’s Accountable
Executive to implement safety risk
mitigations that have been included in
the ASP, including mitigations for the
safety risk reduction program
recommended by the Safety Committee.
The Accountable Executive does not
have authority to decline to implement
elements of an ASP that has been duly
approved by the agency’s Safety
Committee and Board of Directors,
including safety risk mitigations. FTA
declines to add the Safety Committee to
the list of required sources for safety
risk mitigations in § 673.25(d)(2). FTA
notes that the list is intended to be
limited to external sources, such as FTA
and oversight bodies such as an SSOA,
and does not include internal transit
agency sources such as a Safety
Committee, subject matter experts, a
transit agency’s safety department, or
other internal sources.
FTA declines to add a new
requirement for transit agencies to use a
threshold based on a hazard matrix to
decide when safety risk mitigations
should be submitted to the Accountable
Executive because this would conflict
with requirements at §§ 673.11(a),
673.25(d), and 673.27(d) regarding the
role of the Safety Committee to identify
and recommend safety risk mitigations
and would reduce the flexibility
afforded transit agencies to develop
safety risk management processes based
on the size, scope, and complexity of
the transit agency.
J. Section 673.27—Safety Assurance
Comments: One commenter argued
that it is unrealistic for FTA to require

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
all transit agencies to conduct
continuous improvement and that this
would cause SMS to be less scalable.
One commenter asked whether transit
agencies must describe their annual
safety performance assessment
processes under § 673.27(d) in a
document separate from the ASP. They
further asked for additional information
on FTA’s expectations for this annual
safety performance assessment,
including whether the Safety Committee
is required to play a role in the
performance assessment. The
commenter noted the Safety Committee
members may lack the training or time
to do so. One commenter argued that
FTA should require large urbanized area
providers to use their Safety Committee
to conduct this safety performance
assessment.
Another commenter asked whether
the continuous improvement
component of SMS occurs only after the
full implementation of SMS and
whether activities that a transit agency
undertakes to improve SMS processes or
safety performance during SMS
implementation are considered to be
continuous improvement.
Another commenter asked for
clarification regarding the differences
between Management of Change,
System Modification, and Configuration
Management. Similarly, another
commenter asked FTA to clarify how to
measure deficiencies for purposes of
§ 673.27(d)(4) and how to audit
deficiencies. The commenter also
argued that requiring transit agencies to
integrate SSOA concerns into the
continuous improvement process would
make it difficult to prioritize risk
management in a data-driven way
without a process for appealing SSOA
decisions. The commenter requested
clarification as to whether there are
limits to what the SSOA may require an
RTA to include in the continuous
improvement process.
Regarding the role of the Safety
Committee in the Safety Assurance
process, one commenter urged FTA to
require transit systems to use their
Safety Committees to identify
ineffective, inappropriate, and poorly
implemented mitigations and for the
transit agency to implement any
changes that the Safety Committee
directs. This commenter also suggested
that FTA should require the
Accountable Executive to implement
the plan to address deficiencies
identified the annual safety performance
assessments required under proposed
§ 673.27(d)(2).
Response: In the NPRM, FTA
proposed to extend the continuous
improvement requirements to small

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

public transportation providers. This
proposal was responsive to the
Bipartisan Infrastructure Law, which
requires large urbanized area providers
to establish a Safety Committee and a
safety risk reduction program that
involves key elements of continuous
improvement, such as safety
performance target setting, safety
performance monitoring, and the
identification of safety deficiencies and
safety performance issues. FTA believes
that requiring the processes for small
public transportation providers
eliminates possible inconsistencies in
enforcement among small public
transportation providers: some small
public transportation providers operate
in large urbanized areas and are
therefore subject to statutory
requirements for continuous
improvement. FTA appreciates that this
may increase the level of effort required
for small providers compared to the
2018 PTASP final rule. However, FTA
does not agree that this is an unrealistic
requirement for these transit agencies,
or that it would make SMS less scalable.
As noted in the NPRM, these providers
already are required to set safety
performance targets based on the safety
performance measures established in
the National Safety Plan. Based on the
experience that these providers have
gained by operating an SMS and
carrying out required safety
performance measurement activities,
FTA expects they will be able to
formalize these continuous
improvement activities and document
them in their ASP.
Transit agencies may describe their
annual safety performance assessment
process within their ASP or incorporate
it in the ASP by reference. FTA agrees
with the commenter that argued the
Safety Committee must be involved in a
large urbanized area provider’s safety
performance assessment process. One of
the Safety Committee’s key
responsibilities established under 49
U.S.C. 5329(d)(5)(A)(iii) is ‘‘identifying
safety deficiencies for purposes of
continuous improvement.’’ FTA
therefore adopts the proposed
requirement at § 673.27(d)(1)(ii), which
requires that the safety performance
assessment process for large urbanized
area providers address the role of the
agency’s Safety Committee. Transit
agencies and their Safety Committee
have flexibility to determine how to
implement these continuous
improvement activities. However, the
Safety Committee’s procedures must
address how the Safety Committee will
carry out this responsibility, as required
by § 673.19(c)(9). FTA understands the

PO 00000

Frm 00033

Fmt 4701

Sfmt 4700

25725

concerns regarding Safety Committee
training and refers readers to section
II.F.4 above for discussion of this topic.
In response to the question regarding
when continuous improvement
requirements apply, FTA confirms that
the continuous improvement
requirements established at § 673.27(d)
are not dependent on an agency
reaching a specific level of SMS
implementation.
In response to the commenter that
asked for clarification regarding the
differences between Management of
Change, System Modification, and
Configuration Management, FTA notes
that ‘‘management of change’’ is a
subheading under § 673.27 and a
required process within the Safety
Assurance component of an SMS. Given
that ‘‘system modification’’ and
‘‘configuration management’’ are not
found in part 673, FTA does not believe
it is necessary to define these two terms
in this final rule.
FTA appreciates the question from the
commenter regarding the term
‘‘deficiencies’’ used in § 673.27(d). FTA
notes that § 673.27(d) references two
specific types of deficiencies:
deficiencies in the transit agency’s SMS
and deficiencies in the transit agency’s
performance against safety performance
targets. Deficiencies in the transit
agency’s SMS include concerns with the
processes and procedures defined by the
agency to carry out the transit agency’s
SMS. Deficiencies in the transit agency’s
performance against safety performance
targets include instances where the
transit agency fails to meet a safety
performance target, including targets for
the safety risk reduction program for
large urbanized area providers. This
final rule does not establish any audit
requirements related to safety
performance deficiencies. Defining
requirements for an RTA to appeal the
decisions of an SSOA are out of scope
for this final rule. FTA notes that
§ 673.27(d)(1)(iii) requires an RTA’s
continuous improvement process to
address any specific SSOA internal
safety review requirements. FTA
confirms that incorporation of internal
safety review processes into the
continuous improvement element of the
ASP should not interfere with an
agency’s ability to prioritize safety risk.
FTA appreciates the comment
recommending that FTA require transit
systems to use their safety committees
to identify ineffective, inappropriate,
and poorly implemented mitigations.
FTA agrees with the commenter and
notes that it is a key statutorily required
responsibility under 49 U.S.C.
5329(d)(5)(A)(iii) for the Safety
Committee to identify ‘‘mitigations or

E:\FR\FM\11APR2.SGM

11APR2

25726

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

strategies that may be ineffective,
inappropriate, or were not implemented
as intended.’’ Accordingly,
§ 673.19(d)(3)(iii) of the final rule
incorporates this statutory requirement.
Further, FTA agrees with the
commenter’s perspective that the
Accountable Executive is responsible
for carrying out the plan to address
safety performance deficiencies required
under § 673.27(d)(4). FTA notes that
§ 673.27(d)(4) states that the plan must
be carried out ‘‘under the direction of
the Accountable Executive.’’ FTA
reiterates further that per § 673.5, the
Accountable Executive is ultimately
responsible for carrying out the ASP.
FTA believes additional clarification in
the regulation is not necessary.

khammond on DSKJM1Z7X2PROD with RULES2

K. Section 673.29—Safety Promotion
1. Safety Training
Comments: One commenter asked
whether the required safety concern
identification and reporting training in
§ 673.29(a)(1) needs to be a standalone
training course or if it could be
incorporated into another element of the
training program. Another commenter
asked whether transit workers in an
agency’s Safety Department are
considered ‘‘directly responsible for
safety’’ for purposes of the PTASP
training requirements, and whether FTA
expects these workers to complete the
Public Transportation Safety
Certification Training Program
(PTSCTP) under 49 CFR part 672,32 as
well as de-escalation training and safety
concern identification and reporting
training. Another commenter asked
whether transit workers who have
completed training under the PTSCTP
must retake TSI training courses after
the changes adopted in this final rule
have been incorporated into the TSI
training program.
Another commenter asked FTA to
clarify the requirement to provide
refresher training ‘‘as necessary,’’ and
who decides whether refresher training
is necessary. One commenter stated
anecdotally that their transit agency has
not provided safety-related refresher
training in a decade and that some
transit workers have not received safety
training at all.
One commenter stated that FTA’s
proposed requirements are not specific
enough to ensure agencies provide
effective training. This commenter
suggested that FTA require transit
agencies to provide safety training to
new hires within 30 days of their hiring
32 Public Transportation Safety Certification
Training Program, 83 FR 34067 (2018) (Codified at
49 CFR part 672). https://www.ecfr.gov/current/
title-49/subtitle-B/chapter-VI/part-672.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

date and annual refresher training to all
frontline transit workers. It also
suggested that FTA should require
safety training to be interactive and for
transit agencies to update training
materials at least every five years.
Another commenter suggested that
training on how to report safety issues
be included in the ASP.
One commenter expressed concern
about the feasibility and cost of the new
training requirements. Another
commenter suggested that FTA provide
technical assistance to assist agencies
and their contractors implement
training programs.
One commenter asked FTA to clarify
the proposed requirement in
§ 673.29(a)(2) for large urbanized area
providers to include maintenance
workers in their safety training program,
specifically whether this includes
technical maintenance training. A
separate commenter suggested that FTA
create a certification program for
mechanics regarding repair of electric
and alternative fuel buses, and other
new technologies. One commenter
agreed with limiting FTA’s proposal in
§ 673.29(a)(2) to large urbanized area
providers. Conversely, one commenter
suggested that FTA broaden this
requirement to all transit agencies,
including small transit providers and
another commenter similarly suggested
that FTA combine § 673.29(a)(1) with
§ 673.29(a)(2) for ease of
implementation.
Response: Transit agencies may
develop standalone training on safety
concern identification and reporting,
may incorporate this training into
existing courses or programs, or both.
FTA has not identified transit workers
within a transit agency’s Safety
Department as automatically needing to
be covered by the comprehensive safety
training program. FTA gives agencies
flexibility to define who is ‘‘directly
responsible for safety’’ for the purposes
of the PTASP safety training program.
For questions related to PTSCTP
applicability and requirements, FTA
encourages individuals to refer to 49
CFR part 672.
Under § 673.29(a)(1), FTA requires
transit agencies to implement refresher
training ‘‘as necessary’’ for their
comprehensive safety training program.
FTA appreciates the recommendation to
establish more specific requirements
related to timelines for initial and
refresher training. However, FTA
believes that the flexibility regarding the
type and frequency of refresher training
ensures that agencies can establish
requirements that are responsive to the
size, scope, and complexity of their
organization. For example, transit

PO 00000

Frm 00034

Fmt 4701

Sfmt 4700

agencies may determine that annual
refresher training is necessary for
certain elements of their PTASP
comprehensive safety training program.
In response to the commenter who
stated that their transit agency has not
provided safety-related refresher
training in a decade and that some
transit workers have not received safety
training at all, FTA notes that this final
rule requires transit agencies to
establish a comprehensive safety
training program for all operations
transit workers and transit workers
directly responsible for safety in the
transit agency’s public transportation
system. For large urbanized area
providers, the agency’s comprehensive
safety training program also must
include maintenance transit workers.
FTA notes that SSOAs may implement
specific refresher training requirements
for RTAs under their jurisdiction.
FTA agrees that interactive training
and routine updates of training
materials are good practices for training
programs. FTA declines to require these
practices or the commenter’s suggested
timelines for initial and refresher
training due to the flexibility afforded to
transit agencies by the PTASP
regulation, but FTA will consider these
topics for future technical assistance.
FTA appreciates the suggestion that it
establish requirements for the
development and delivery of training on
how to report safety issues. FTA agrees
that training on safety concern reporting
and transit worker safety reporting
processes at an agency are important.
This final rule does not establish
specific training requirements related to
these individual program elements.
However, FTA encourages transit
agencies to document all such training
as part of its comprehensive safety
training program.
FTA acknowledges the comment that
noted training requirements would add
costs to the transit agency. FTA
acknowledges that FTA-provided or
FTA-recommended training is useful
and has the potential to reduce burden
on transit agencies, and FTA will
consider the development of additional
training resources to support these
efforts.
The Bipartisan Infrastructure Law
requires at 49 U.S.C. 5329(d)(1)(H)(ii)
that large urbanized area providers
include maintenance workers in their
PTASP comprehensive safety training
program. FTA appreciates the benefit
transit agencies could receive from
including maintenance transit workers
in the comprehensive safety training
program. Transit agencies that are not
large urbanized area providers may
include portions of their maintenance

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

khammond on DSKJM1Z7X2PROD with RULES2

workforce in the comprehensive safety
training program based on their agency’s
definition of ‘‘transit workers directly
responsible for safety’’ or on a voluntary
basis. However, FTA declines to extend
the requirement to all agencies due to
concerns related to industry burden.
Transit agencies do not need to
include technical maintenance-specific
training in their comprehensive safety
training program. Rather, under
§ 673.29(a), large urbanized area
providers must include maintenance
transit workers in their comprehensive
safety training program, which includes
de-escalation training, safety concern
identification and reporting training,
and refresher training as necessary.
FTA appreciates the suggestion
received from the commenter regarding
the creation of a certification program
for mechanics regarding repair of
electric and alternative fuel buses, and
other new technologies but notes that
this final rule does not establish a new
certification program and that existing
safety certification training
requirements are defined at 49 CFR part
672.
FTA declines to combine
§§ 673.29(a)(1) and 673.29(a)(2). Given
that these two paragraphs have different
applicability, FTA believes that keeping
them separate is the clearest way to
articulate these requirements.
2. De-Escalation Training
Comments: One commenter requested
general clarification about the deescalation training requirement in
§ 673.29(a)(1). One commenter
recommended that FTA establish a
uniform de-escalation training
curriculum and require all bus operators
and transit workers who work directly
in the field to receive de-escalation
training, including retraining for
operators who previously received this
training. The commenter noted that
some bus operators have not had deescalation refresher training in years,
and some have never had this kind of
training at all. They also argued that
transit agencies’ existing de-escalation
training sometimes is not thorough or is
focused on the wrong type of transit
workers.
One commenter expressed concern
regarding the time and cost of deescalation training. Another commenter
requested technical assistance from FTA
about the requirement, including a list
of vendors on FTA’s website similar to
the COVID–19 resources page that FTA
established during the pandemic.
Another commenter argued that if RTAs
are allowed to create their own deescalation training, FTA should provide
them with guidelines.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Two commenters recommended that
FTA update the de-escalation training
offered through NTI using current
industry standards, with one commenter
expressing concern that the current
training course is outdated and
ineffective.
A participant at an FTA webinar and
several commenters expressed concern
that the de-escalation training
requirement is just a ‘‘check-the-box’’
exercise. One commenter stated that
crime prevention and workplace
violence are complex issues that
frequently involve individuals
experiencing mental health or substance
abuse crises or repeat criminal offenders
who do not respond to de-escalation
techniques. It stated that the transit
industry needs more than this rule
change to address these issues.
Two commenters requested that FTA
more clearly define which individuals
must complete de-escalation training.
This commenter also asked if a transit
agency should consider any metrics for
determining whether to provide deescalation training and if it can use a
threshold for requiring de-escalation
training based on the number of assaults
experienced at an agency per year.
One commenter stated that FTA did
not specify how often de-escalation
training must occur.
Response: FTA agrees that deescalation training is beneficial for
transit operators and any transit worker
who works directly in the field. In
§ 673.29(a), FTA is requiring training
programs to include de-escalation
training for operations transit workers
and transit workers directly responsible
for safety, which could include transit
workers directly in the field. For large
urbanized area providers, this
requirement also extends to
maintenance transit workers. FTA
worked with the National Transit
Institute and the TSI to develop and
provide Assault Awareness and
Prevention and Violence in the Transit
Workplace train-the-trainer and direct
delivery courses.33 While transit
agencies are not required to use these
courses as part of their training program,
transit agencies may use these courses
as part of their de-escalation training.
FTA understands the concerns that this
training course is outdated and
ineffective and will consider updating
the existing training and developing a
voluntary curriculum for de-escalation
training as part of its ongoing technical
assistance. Fundamentally, FTA
33 Federal Transit Administration (October 2023).
‘‘FTA-Sponsored Training Courses.’’ https://
www.transit.dot.gov/regulations-and-guidance/
safety/fta-sponsored-training-courses.

PO 00000

Frm 00035

Fmt 4701

Sfmt 4700

25727

believes that de-escalation training has
a significant ability to improve transit
worker responses to challenging and
potentially dangerous situations and
does not view de-escalation training as
a ‘‘check-the-box’’ exercise.
FTA acknowledges the commenter
that noted refresher training
requirements would add costs to the
transit agency. FTA notes that FTAprovided or FTA-recommended training
is useful and has the potential to reduce
burden on transit agencies, and FTA
will consider the development of
additional refresher training resources
to support these efforts. FTA
acknowledges the SSOA commenter
that argued that if RTAs are allowed to
create their own de-escalation training,
FTA should provide them with
guidelines. In keeping with the inherent
flexibility on an SMS, FTA believes that
an RTA may develop its own deescalation training and declines to
establish specific guidelines that may
restrict an RTA from addressing its own
specific de-escalation needs. Further,
FTA notes that SSOAs may establish
additional requirements for the RTAs
they oversee, including requirements
related to the comprehensive safety
training program.
FTA also appreciates the commenters
that recommended FTA provide a list of
vendors on FTA’s website similar to the
approach used by FTA to publish the
COVID–19 resources toolkit, as well as
guidelines to RTAs. FTA will consider
these suggestions as it develops
additional technical assistance related
to de-escalation training.
FTA agrees that ongoing de-escalation
training is beneficial. While FTA is not
requiring a specific frequency for deescalation training, FTA encourages
transit agencies to establish a routine
cadence for de-escalation training. FTA
appreciates that transit workers may
encounter a variety of situations,
including ones involving individuals
experiencing mental health or substance
abuse crises, and believes that deescalation training can help prepare
transit workers to handle these
situations. Transit agencies could
consider using metrics, such as the
number of assaults experienced per
year, to determine how often to provide
de-escalation refresher training.
3. Safety Communication
Comments: One commenter requested
that FTA clarify when a transit agency
must communicate hazards relevant to
an employee’s roles or responsibilities
under § 673.29(b), and whether this
requirement applies to all relevant
hazards or only hazards that meet a
determined risk rating. The commenter

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

25728

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

also requested clarification on the
required timing for informing
employees of actions taken in response
to safety reporting.
Three commenters stated that FTA
should clarify the requirements for
integrating the results of cooperation
with frontline transit worker
representatives and Safety Committee
activities into the agency’s overall safety
communication process at § 673.29(b).
One commenter requested further
clarification on whether FTA is
mandating routine communications to
the organization regarding safety and
what those communications must
include.
One commenter asked whether these
safety communication activities should
be included in the ASP or in separate
documentation.
Response: FTA is not establishing a
specific threshold for determining
which hazards and associated safety risk
information relevant to a transit
worker’s roles and responsibilities a
transit agency must communicate.
Similarly, FTA has not established a
time frame for informing transit workers
of hazards, associated safety risk, or
actions taken in response to reports
received through a transit worker safety
reporting program. FTA believes that
the flexibility regarding these
requirements ensures that agencies can
establish processes that are responsive
to the size, scope, and complexity of
their organization. This final rule
provides sufficient flexibility for transit
agencies to make these determinations
themselves.
FTA is not establishing more explicit
requirements regarding minimum
communication relating to frontline
transit worker representatives and
Safety Committees. In deference to the
significant differences in scope and
mechanisms for communication
throughout the transit industry, FTA
believes that transit agencies should
have flexibility in this area. FTA will
consider technical assistance on safety
communication processes in the future.
Finally, FTA appreciates the question
regarding whether these safety
communication activities should be
included in the ASP or in separate
documentation. Under § 673.11(a)(2), a
transit agency’s ASP must document the
processes and activities related to SMS
implementation, which a transit agency
may include or incorporate by reference.
This includes the safety communication
processes established under § 673.29(b).
However, FTA does not expect transit
agencies to document the actual
communications in an ASP. Please note
that each transit agency must keep these
records for a minimum of three years

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

consistent with the recordkeeping
requirements in § 673.31.
L. Section 673.31—Safety Plan
Documentation
Comments: One commenter stated
that FTA should more clearly define the
required documentation of the
programs, policies, and procedures that
the agency uses to carry out its ASP as
stated in § 673.31. Another commenter
requested FTA specify that a transit
agency must maintain documents
related to ASP approval.
Response: FTA notes that safety plan
documentation is an existing
requirement under the 2018 PTASP
final rule. FTA disagrees that this
section requires additional specificity,
as the documentation of SMS processes
and activities, will differ among transit
agencies. Therefore, FTA declines to
make any changes to the final rule in
response to these comments. FTA
provides technical assistance to transit
agencies with questions about
documentation requirements via the
PTASP Technical Assistance Center
(TAC).34 As noted above, under
§ 673.11(a)(2), a transit agency’s ASP
must document the processes and
activities related to SMS
implementation, consistent with the
recordkeeping requirements in § 673.31,
which cover SMS processes and
procedures, and results from SMS
activities, including ASP approvals.
M. Other Topics
1. Assaults on Transit Workers
Comments: Several commenters
expressed concern that the requirements
of this rule do not go far enough to
prevent assaults on transit workers.
Commenters noted that assaults on
transit workers are widespread and
worsening and that FTA should take
swift and decisive action to address
assaults on transit workers. Several
commenters expressed that FTA should
immediately begin the study and
attendant rulemaking required by
Section 3022 of the Fixing America’s
Surface Transportation (FAST) Act to
protect transit workers from attacks.
One commenter stated that, in many
transit agencies, bus operators who
leave the driver’s seat to de-escalate a
developing situation or to defend a
passenger or themselves from an active
assault are dismissed from their
position. They stated that policies like
these make operators feel vulnerable
and powerless in the lead up to or
during an assault. An additional
34 Federal Transit Administration (October 2023).
‘‘PTASP Technical Assistance Center.’’ https://
www.transit.dot.gov/PTASP.

PO 00000

Frm 00036

Fmt 4701

Sfmt 4700

commenter stated that, when an assault
involving a transit worker and a
passenger occurs, regardless of who
initiated or actively participated in the
assault, the driver is often punished and
not the passenger.
One commenter stressed the
importance of an Employee Assistance
Program (EAP) for transit workers who
are involved in assaults or other events,
as well as access to paid time off to
address physical and mental health
needs following an event.
One commenter urged for increased
Federal penalties for assaults on transit
workers, specifically elevating the crime
to a felony and banning offenders from
using public transportation, noting that
some state legal codes include passenger
bans.
Response: FTA appreciates that some
stakeholders may have desired this
rulemaking to impose more specific
requirements relating to assaults on
transit workers. The PTASP rulemaking
is one element of FTA’s approach to
addressing this important issue. The
processes outlined in SMS and
reinforced in this regulation are critical
to the transit industry’s response to
assaults on transit workers. By following
the processes of SMS, the transit
industry can make effective changes at
their agencies to reduce the incidence of
assaults on transit workers.
FTA has also initiated a separate
rulemaking on Transit Worker and
Public Safety. This rule would establish
minimum baseline standards and riskbased requirements to address transit
worker and public safety based on the
most current research and available
information, including but not limited
to, addressing the requirements of
Section 3022 of the FAST Act. The
purpose of this rulemaking is to reduce
serious injury events and fatalities from
assaults involving transit workers,
passengers, and the public.
FTA appreciates that de-escalation
and response to an assault are
complicated in a transit environment,
particularly when aboard a moving
vehicle. FTA encourages transit
agencies to work with their frontline
transit workforce and Safety Committees
as appropriate to identify policies and
techniques that enable transit workers to
respond in a safe and effective manner.
FTA agrees that EAPs can benefit
transit workers and transit agencies after
a traumatic event. While FTA is not
requiring transit agencies to implement
an EAP, transit agencies may voluntarily
develop such a program to support their
workforce. FTA has aggregated a list of
mental health resources to support
transit workers during challenging

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
times.35 FTA encourages transit
agencies to share these online resources
widely with their workers and with
other transit agencies in their networks.
FTA notes that legal remedies such as
increased Federal penalties for assaults
on transit workers, elevation of assaults
on transit workers to a felony, and
banning offenders from using public
transportation are outside the scope of
FTA’s authority.

khammond on DSKJM1Z7X2PROD with RULES2

2. Assaults on Transit Workers Data
Comments: FTA received several
comments about data reporting on
assaults on transit workers. One
commenter recommended that FTA
create a mandatory nationwide database
for transit agencies to report assaults on
transit workers, and for FTA to publish
reports about the data on a regular basis.
One commenter expressed concern that
the new NTD requirement to report
assaults on transit workers could result
in the perception that the number of
assaults on transit workers has
increased significantly. The commenter
recommended that FTA provide context
regarding new reporting requirements
when it makes this data publicly
available.
One commenter stated that transit
agencies should collect information
from transit passengers who witness
assaults on transit workers, noting that
assaults may otherwise go unreported.
Another commenter stated that some
transit agencies are not keeping accurate
records of the assaults that transit
workers are experiencing. Other
commenters expressed that assaults on
transit workers are severely
underreported. One comment requested
clarification on whether assaults on
transit workers data are safety data or
security data.
One commenter also stated their
transit dispatch ‘‘tends to over-report’’
and offered the example of an argument
being reported as verbal assault. The
commenter stated the data cleanup and
training required under the rule as
written would lead to a great
administrative burden.
Response: FTA requires transit
agencies that are recipients of certain
Federal funding to report to the NTD on
the financial, operating, and asset
condition of transit systems. The NTD
program publishes data products on a
regular basis containing information and
statistics, including statistics on transit
safety. The NTD program serves as
FTA’s system for collection of assaults
35 Federal

Transit Administration (May 2023).
‘‘Mental Health Resources for Transit Workers.’’
https://www.transit.dot.gov/regulations-andprograms/safety/mental-health-resources.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

on transit workers data and ensures all
associated reporting requirements are
clarified. FTA’s published safety data
includes notes regarding NTD reporting
threshold changes that may impact how
data is interpreted. FTA notes that such
information will be included in publicly
available data related to assaults on
transit workers, to the extent that it
includes data reported prior to the
NTD’s implementation of the Bipartisan
Infrastructure Law assault reporting
requirements.
FTA appreciates the value of
witnesses when investigating instances
of assaults on transit workers. FTA
encourages transit agencies to leverage
witness information as possible to help
inform investigative, safety reporting,
and Safety Risk Management activities.
FTA appreciates the comments
regarding the challenges of reporting
assaults on a transit worker and
questions about classification of assaults
as safety events or security events. FTA
acknowledges that assaults on transit
workers historically have been severely
underreported and that this has created
challenges for remedying this issue. The
new NTD assault reporting requirements
enacted by the Bipartisan Infrastructure
Law will help transit industry
stakeholders better understand and
address assaults on transit workers. FTA
notes that the NTD has already
established reporting requirements for
assaults on transit workers. Nothing in
this final rule changes those
requirements or increases data
collection or reporting burden related to
assaults on transit workers. As
explained in Section II.B.3 of the
preamble above, the NTD communicates
guidance to the NTD reporting
community to clarify these reporting
requirements. FTA refers readers to that
section of the preamble for additional
discussion of this topic.
3. Confidential Close Call/Near-Miss
Transit Worker Safety Reporting
Systems
In the NPRM, FTA requested
information from stakeholders regarding
their experience establishing
confidential reporting methods for
transit workers. FTA did not propose
any new requirements on this topic in
the NPRM. FTA received several
responses relating to its request for
information. FTA thanks commenters
for this feedback and is considering this
information to inform future FTA action
and technical assistance.
N. Regulatory Impact Analysis
Comments: Several comments
requested that FTA reevaluate the labor
hour assumptions it used to estimate

PO 00000

Frm 00037

Fmt 4701

Sfmt 4700

25729

costs for regulated entities to meet the
requirements of the rule.
For de-escalation training, one
commenter recommended that FTA
provide hours for agency personnel to
provide and track the progress of such
training. The commenter sought
additional clarification about the deescalation training estimates, including
whether FTA is requiring 0.25 hours of
annual de-escalation training.
For the Safety Committee
requirement, one commenter claimed
that the first-year estimates for HR
managers and safety managers seemed
too low. Another commenter claimed
that the estimates only provided hours
for six individuals, although Safety
Committees at larger transit agencies
might be much larger; it also did not
account for the administrative burden of
preparing meeting materials and
minutes.
For continuous improvement, one
commenter stated that the first-year
hours for the Chief Safety Officer and
Safety Manager do not fully account for
the cost of developing and
implementing continuous improvement.
In addition, the estimates should
include hours for the Accountable
Executive.
For the safety risk reduction program,
one commenter claimed that estimates
do not accurately reflect the resources
needed to develop and implement the
program, given the number of safety
events the commenter’s agency
experienced annually.
For frontline worker involvement
with ASP, one commenter claimed that
the estimates do not include frontline
personnel and that the hour estimates
are too low.
Finally, one comment stated the
estimated costs are generally too low but
did not identify specific issues.
Response: In response to comments,
FTA reviewed and revised the labor
hour estimates as detailed in Section IV.
‘‘Regulatory Analyses and Notices’’
below. The updated cost estimates
reflect the revised labor hours. For
annual de-escalation training, FTA is
estimating a half-hour training every
two years, for an average of 0.25 hours
per year.
O. Regulatory Burden
Comments: One commenter opposed
this rulemaking generally, arguing that
it imposes too much regulation on the
transit industry. Some comments
expressed that the new PTASP
requirements impose burden without
additional funding. Two commenters
stated that FTA should provide funding
for transit agencies to meet these
requirements, with one asking for

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

25730

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

funding to be available without
additional steps or grant applications.
One commenter stated that some transit
agencies may need to hire additional
workers to meet PTASP requirements.
They recommended that FTA provide
relief from some requirements for
smaller transit agencies. They also
requested that FTA provide substantive
technical assistance and resources to
assist agencies comply with the final
rule.
One commenter expressed concern
that the proposed requirements are more
prescriptive than the 2018 final rule and
that this increases the burden on transit
agencies, particularly small and midsized RTAs who also must comply with
their SSOA’s Risk-Based Inspection
programs. They expressed concern that
FTA’s safety rulemakings have forced
transit agencies to constantly evolve
their safety programs to accommodate
increasingly burdensome requirements
and that FTA should provide a grace
period for transit agencies to evaluate
and implement staffing and resources
needed to comply with the new
requirements.
Response: FTA appreciates the
comments received on the relative
increase in costs related to this rule.
FTA’s cost-benefit analysis is based on
the average estimated impact to transit
agencies. The transit agencies that must
comply with this regulation receive
Chapter 53 funds and, with very few
exceptions, receive section 5307 funds.
Regarding the comment requesting
funding be made available without
additional steps or grant applications,
FTA notes that agencies can use their
existing section 5307 formula funds for
eligible safety projects.
This final rule is implementing
requirements statutorily mandated by
Congress, and FTA has attempted to
implement the statutory requirements
by imposing the least burden on transit
agencies. To minimize the de-escalation
training burden on all transit agencies
subject to part 673, FTA has made deescalation training freely available to all
transit agencies via the FTA-sponsored
Assault Awareness and Prevention for
Transit Operators courses offered by the
National Transit Institute.36 Regarding
continuous improvement, under the
PTASP rule currently in effect, small
public transportation providers are
already required to set safety
performance targets. Based on the
experience that the providers have
gained by implementing SMS and
36 Federal Transit Administration (October 2023).
‘‘FTA-Sponsored Training Courses.’’ https://
www.transit.dot.gov/regulations-and-guidance/
safety/fta-sponsored-training-courses.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

carrying out required safety
performance measurement activities,
FTA expects that the providers will be
able to formalize their continuous
improvement activities and document
them in their ASP. FTA intends to
continue its existing PTASP technical
assistance program and will consider
assistance geared towards smaller
providers in the future.
FTA disagrees that a ‘‘grace period’’
for part 673 implementation is
necessary and notes that to the extent
the final rule incorporates Bipartisan
Infrastructure Law requirements, those
requirements have been in effect since
November 15, 2021.
III. Section-by-Section Analysis
Subpart A—General
673.1—Applicability
This section sets forth the
applicability of the PTASP regulation.
The regulation applies to any State,
local governmental authority, and any
other operator of a public transportation
system that receives Federal financial
assistance under 49 U.S.C. chapter 53.
FTA has deferred applicability to
operators that only receive Federal
financial assistance under 49 U.S.C.
5310 or 5311, or both 49 U.S.C. 5310
and 5311, and that do not operate a rail
fixed guideway system.
673.3—Policy
This section explains that FTA is
utilizing the principles and methods of
SMS as the basis for this regulation and
all other regulations and policies FTA
has issued and will issue under the
authority of 49 U.S.C. 5329. FTA’s
standards for SMS are flexible and
scalable and may be tailored to the size
and operating complexity of the transit
operator.
673.5—Definitions
This section sets forth the definitions
of key terms used in the regulation.
Most notably, readers should refer to
‘‘assault on a transit worker,’’ ‘‘safety
event,’’ ‘‘safety performance target,’’ and
‘‘transit worker.’’
Subpart B—Safety Plans
673.11—General Requirements
This section establishes general
PTASP requirements.
Pursuant to 49 U.S.C. 5329(d)(1), this
section requires each operator of public
transportation subject to this rule to
develop a Public Transportation Agency
Safety Plan (ASP) consistent with this
part. Section 673.11(a)(1) requires the
ASP and subsequent updates be signed
by the Accountable Executive. For large
urbanized area providers, the Safety

PO 00000

Frm 00038

Fmt 4701

Sfmt 4700

Committee must also approve the ASP,
and any updates, followed by the transit
agency’s Board of Directors or
equivalent entity. For all other transit
agencies, the transit agency’s Board of
Directors or equivalent entity must
approve the ASP.
Section 673.11(a)(2) requires the ASP
to document the processes and activities
related to SMS.
Section 673.11(a)(3) requires that
ASPs must include annual safety
performance targets based on the safety
performance measures established
under FTA’s National Safety Plan. The
ASP of a large urbanized area provider
must also include safety performance
targets for the safety risk reduction
program.
Section 673.11(a)(4) requires the ASP
to address all applicable requirements
and standards of FTA’s Safety Program.
Section 673.11(a)(5) requires each
transit agency to establish a process and
timeline for reviewing annually its ASP.
Section 673.11(a)(6) requires the ASP
of each RTA to include or incorporate
by reference an emergency preparedness
plan, any policies and procedures
relating to rail transit workers on the
roadway, and policies and procedures
related to the State Safety Oversight
Agency’s risk-based inspection program.
Section 673.11(a)(7) requires the ASP
of each large urbanized area provider to
include a safety risk reduction program
for transit operations to improve safety
by reducing the number and rates of
safety events, injuries, and assaults on
transit workers. The safety risk
reduction program must address the
reduction and mitigation of vehicular
and pedestrian safety events involving
transit vehicles, and the reduction and
mitigation of assaults on transit workers.
The safety risk reduction program must
also include the safety performance
targets set by the Safety Committee.
These targets must be based on a threeyear rolling average of the data
submitted by the large urbanized area
provider to the National Transit
Database (NTD); for all modes of public
transportation; and based on the level of
detail the large urbanized area provider
is required to report to the NTD. The
Safety Committee is not required to set
a target for a performance measure until
the large urbanized area provider has
been required to report three years of
data to the NTD corresponding to such
performance measure.
Finally, the safety risk reduction
program must include or incorporate by
reference the safety risk mitigations
identified and recommended by the
Safety Committee as described in
§ 673.25(d)(5).

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
Section 673.11(b) provides that a
transit agency may develop one ASP for
all modes of transit service, or it may
develop separate ASP for each mode of
service not subject to safety regulation
by another Federal entity.
Section 673.11(c) requires each transit
agency to maintain its ASP in
accordance with the recordkeeping
requirements of this Part.
Section 673.11(d) requires a State to
draft and certify an ASP for a small
public transportation provider that is
located in that State. FTA notes a small
public transportation provider may also
be a large urbanized area provider and
thus required to have an ASP with the
attendant provisions, such as a Safety
Committee and safety risk reduction
program.
Section 673.11(e) exempts agencies
that operate passenger ferries regulated
by the United States Coast Guard
(USCG) or rail fixed guideway public
transportation service regulated by the
Federal Railroad Administration (FRA)
from the requirement to develop an ASP
for those modes of service.

khammond on DSKJM1Z7X2PROD with RULES2

673.13—Certification of Compliance
This section sets forth certification
requirements. Section 673.13(a) lays out
the requirement that a State’s initial
PTASP certification for a small
transportation provider, or direct
recipient’s certification, must occur by
the start of operations. This section also
requires SSOAs to review and approve
the ASP developed by a rail fixed
guideway public transportation system.
Section 673.13(b) requires the
certification on an annual basis and that
direct recipients must certify
compliance on behalf of any
subrecipients.
673.15—Coordination With
Metropolitan, Statewide, and NonMetropolitan Planning Processes
In accordance with 49 U.S.C.
5303(h)(2)(B) and 5304(d)(2)(B), section
673.15(a) requires that each State and
transit agency must make its safety
performance targets available to States
and Metropolitan Planning
Organizations to aid in the planning
process. Section 673.15(b) requires, to
the maximum extent practicable, a State
or transit agency to coordinate with
States and Metropolitan Planning
Organizations in the selection of State
and MPO safety performance targets.
Subpart C—Safety Committees and
Cooperation With Frontline Transit
Worker Representatives
Subpart C, ‘‘Safety Committees and
Cooperation with Frontline Transit
Worker Representatives’’ incorporates

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Bipartisan Infrastructure Law
requirements for Safety Committees and
cooperation with frontline transit
worker representatives.
673.17—Cooperation With Frontline
Transit Worker Representatives
Section 673.17 establishes
requirements for transit agency
cooperation with frontline transit
worker representatives, as required by
the Bipartisan Infrastructure Law. In
§ 673.17(a), FTA incorporates the
statutory requirement that a large
urbanized area provider must establish
a Safety Committee. Section 673.17(b)
incorporates the statutory requirement
that a transit agency that is not a large
urbanized area provider must develop
its ASP, and subsequent updates, in
cooperation with frontline transit
worker representatives, as required by
the Bipartisan Infrastructure Law. In
this section, FTA also requires that such
providers must include or incorporate
by reference in the ASP a description of
how frontline transit worker
representatives cooperate in the
development and update of the ASP.
673.19—Safety Committee
The Bipartisan Infrastructure Law
requires that transit agencies serving a
large urbanized area establish a Safety
Committee that meets certain
requirements.
Section 673.19(a) incorporates the
statutory requirement that the Safety
Committee be convened by a joint-labor
management process and provides that
the Safety Committee be appropriately
scaled to the size, scope, and
complexity of the transit agency.
Section 673.19(b) incorporates the
statutory requirement that the Safety
Committee consist of an equal number
of frontline transit worker
representatives and management
representatives. This section also
requires that the Safety Committee
include frontline transit worker
representatives from major transit
service functions to the extent
practicable.
Section 673.19(b) also incorporates
the statutory requirement that the
frontline transit worker representatives
on the Safety Committee be selected by
a labor organization representing the
plurality of the frontline workforce. If a
transit agency’s frontline transit workers
are not represented by a labor
organization, the transit agency must
adopt a mechanism to ensure that
frontline transit workers select frontline
transit worker representatives for the
Safety Committee.
Section 673.19(c) requires each large
urbanized area provider include or

PO 00000

Frm 00039

Fmt 4701

Sfmt 4700

25731

incorporate by reference in its ASP
procedures about the composition,
responsibilities, and operations of the
Safety Committee. Of note are the
requirements to include procedures
related to how meeting agendas and
notices will be developed and shared,
and how meeting minutes will be
recorded, maintained, and shared; the
compensation policy for participation in
Safety Committee meetings, procedures
for reaching and recording decisions,
and procedures for resolving disputes,
such as the existing dispute resolution
process at the agency.
Section 673.19(d) identifies statutorily
required activities that the Safety
Committee must take, including ASP
review and approval, setting annual
safety performance targets to support
the safety risk reduction program, and
support of SMS activities.
Subpart D—Safety Management
Systems
673.21—General Requirements
This section outlines the SMS
elements that each transit agency must
establish in its ASP. Each transit agency
must establish processes and procedures
which include the four main pillars of
SMS: (1) Safety Management Policy; (2)
Safety Risk Management; (3) Safety
Assurance; and (4) Safety Promotion.
Each transit agency’s SMS must be
appropriately scaled to the size and
complexity of the system.
673.23—Safety Management Policy
Section 673.23(a) requires the transit
agency’s Safety Management Policy to
include a description of the transit
agency’s Safety Committee or approach
to cooperation with frontline transit
worker representatives, as applicable.
Section 673.23(b) directs each transit
agency to establish and implement a
process that allows transit workers to
report safety concerns.
Section 673.23(c) requires that the
Safety Management Policy be
communicated throughout the transit
agency’s organization.
Section 673.23(d) requires the transit
agency to establish the necessary
authorities, accountabilities, and
responsibilities necessary to meet its
safety objectives, particularly as they
relate to the development and
management of the transit agency’s
SMS. Section 673.23(d)(1) requires each
transit agency to identify an
Accountable Executive and describes
their role. Under § 673.25(d)(1)(i), the
Accountable Executive of a large
urbanized area provider must
implement all safety risk mitigations for
the safety risk reduction program that

E:\FR\FM\11APR2.SGM

11APR2

25732

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

khammond on DSKJM1Z7X2PROD with RULES2

are included in the ASP under
§ 673.11(a)(7)(iv). Under
§ 673.23(d)(1)(ii), the Accountable
Executive of a large urbanized area
provider receives and must consider all
other safety risk mitigation
recommendations of the Safety
Committee, consistent with
requirements in §§ 673.19(d) and
673.25(d)(6).
Sections 673.23(d)(2)–(5) require each
transit agency to designate a Chief
Safety Officer or SMS Executive, Safety
Committee (for large urbanized area
providers), identify transit agency
leadership and executive management,
and designate key staff.
673.25—Safety Risk Management
Section 673.25(a) requires that each
transit agency must develop and
implement a Safety Risk Management
(SRM) process for all elements of its
system. The SRM process includes
hazard identification, safety risk
assessment, and safety risk mitigation.
Section 673.25(b) discusses hazard
identification. Section 673.25(b)(1)
requires a transit agency to establish
processes to identify hazards and
potential consequences. Section
673.25(b)(2) lists certain data that a
transit agency must consider as a source
for hazard identification, including data
regarding exposure to infectious disease
provided by the CDC or a State health
authority.
Section 673.25(c) describes the
requirements for safety risk assessments.
Section 673.25(d) discusses safety risk
mitigation. Section 673.25(d)(1) requires
a transit agency to establish methods or
processes to identify safety risk
mitigations necessary as a result of the
transit agency’s safety risk assessment.
For large urbanized area providers,
these methods or processes must
address the role of the agency’s Safety
Committee.
Section 673.25(d)(2) requires transit
agencies to consider guidance provided
by an oversight authority, if applicable,
and FTA as a source for safety risk
mitigation as well as CDC or State
health authority guidelines to prevent or
control exposure to infectious diseases.
Sections 673.25(d)(3) and (d)(4)
require each large urbanized area
provider and its Safety Committee to
consider specific safety risk mitigations
related to vehicular and pedestrian
safety events involving transit vehicles
and assaults on transit workers when
identifying safety risk mitigations for
the safety risk reduction program,
including when addressing a missed
safety risk reduction program safety
performance target. Section 673.25(d)(3)
requires consideration of operator

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

visibility impairment mitigations for
any type of transit vehicles, not just
buses. Similarly, § 673.25(d)(4) requires
consideration of assault mitigation
infrastructure and technology in any
type of transit vehicle and in transit
facilities, not just buses.
Section 673.25(d)(5) requires a large
urbanized area provider to include or
incorporate by reference in its ASP, as
required by § 673.11(a)(7)(iv), any safety
risk mitigations recommended by the
Safety Committee based on a safety risk
assessment as part of the safety risk
reduction program. This includes
mitigations relating to vehicular and
pedestrian safety events or assaults on
transit workers.
Section 673.25(d)(6) provides that if
the Safety Committee recommends a
safety risk mitigation unrelated to the
safety risk reduction program and the
Accountable Executive decides not to
implement the safety risk mitigation, the
Accountable Executive is required to
prepare a written statement explaining
their decision. The Accountable
Executive must submit and present this
explanation to the Safety Committee
and Board of Directors, or equivalent
entity.
673.27—Safety Assurance
Section 673.27(a) requires transit
agencies to develop and implement a
safety assurance process.
Section 673.27(b) requires transit
agencies to establish safety performance
monitoring and measurement activities.
This section requires that large
urbanized area providers address the
role of the Safety Committee. This
ensures that the SMS of these transit
agencies incorporates the Safety
Committee’s statutorily required
responsibilities relating to safety
performance monitoring and
measurement.
Section 673.27(c) requires transit
agencies to establish a process for
identifying and addressing changes to
the system or operating conditions.
Section 673.27(d) addresses the
requirement of continuous
improvement. This requirement applies
to all transit agencies subject to part
673. Section 673.25(d)(1) requires that a
transit agency must establish a process
to assess its safety performance
annually. This process must include
identifying deficiencies in the transit
agency’s SMS and in the agency’s safety
performance against its safety
performance targets, including safety
performance targets required for all
transit agencies at § 673.11(a)(3). For
large urbanized area providers, the
continuous improvement process must
address the role of the transit agency’s

PO 00000

Frm 00040

Fmt 4701

Sfmt 4700

Safety Committee and include the
identification of deficiencies in the
transit agency’s performance against
annual safety performance targets set by
the Safety Committee under
§ 673.19(d)(2) for the safety risk
reduction program. Additionally, this
section requires that RTAs must address
internal safety review requirements
established by SSOAs as part of the
continuous improvement element of
Safety Assurance.
Sections 673.27(d)(2) through (d)(4)
address continuous improvement
requirements related to safety
performance targets as part of a large
urbanized area provider’s safety risk
reduction program. Section 673.27(d)(2)
requires the large urbanized area
provider to monitor safety performance
against the annual safety targets. Section
673.27(d)(3) identifies the requirements
for a large urbanized area provider that
does not meet an annual safety
performance target set by the Safety
Committee for the safety risk reduction
program. Specifically, the transit agency
must: (1) assess the associated safety
risk; (2) mitigate associated safety risk
using the safety risk mitigation process
under § 673.25(d) and include those
mitigations in the plan described in
§ 673.27(d)(4); and (3) allocate its safety
set-aside in the following fiscal year to
safety related projects that are
reasonably likely to assist in meeting the
safety performance target.
Section 673.27(d)(4) requires a transit
agency to develop and carry out, under
the direction of the Accountable
Executive, a plan to address any
deficiencies identified through the
safety performance assessment.
673.29—Safety Promotion
This section requires each transit
agency to establish competencies and
training for all agency employees
directly responsible for safety, and to
establish and maintain the means for
communicating safety performance and
SMS information. Section 673.29(a)
requires transit agencies to include deescalation and safety concern
identification and reporting training in
their comprehensive safety training
program. This requirement applies to all
agencies, not just large urbanized area
providers.
This section also incorporates the
statutory requirement that large
urbanized area providers must include
maintenance workers in their training
programs.
Section 673.29(b) requires transit
agencies to integrate the results of
cooperation with frontline transit
worker representatives and joint labormanagement Safety Committee activities

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
into their safety communication
activities. This requirement addresses
the communication impacts resulting
from the new requirements for
cooperation with frontline transit
worker representatives and Safety
Committee activities and to make sure
that the results of these activities are
communicated throughout the
organization.
Subpart E—Safety Plan Documentation
and Recordkeeping
673.31—Safety Plan Documentation
This section requires each transit
agency to keep records of its documents
that are developed in accordance with
this part. FTA expects a transit agency
to maintain documents that set forth its
ASP, including those related to the
implementation of its SMS such as the
results from SMS processes and
activities. For the purpose of reviews,
investigations, audits, or other purposes,
this section requires each transit agency
to make these documents available to
FTA, SSOAs in the case of rail transit
systems, States, and other Federal
agencies as appropriate. A transit
agency must maintain these documents
for a minimum of three years.
IV. Regulatory Analyses and Notices
Executive Order 12866 (Regulatory
Planning and Review) and Executive
Order 13563 (Improving Regulation and
Regulatory Review)
Executive Order 12866 (‘‘Regulatory
Planning and Review’’), as
supplemented by Executive Order
13563 (‘‘Improving Regulation and
Regulatory Review’’) and Executive
Order 14094 (‘‘Modernizing Regulatory
Review’’), directs Federal agencies to
assess the benefits and costs of
regulations, to select regulatory
approaches that maximize net benefits
when possible, and to consider
economic, environmental, and
distributional effects. It also directs the

Office of Management and Budget
(OMB) to review significant regulatory
actions, including regulations with
annual economic effects of $200 million
or more. OMB has determined the final
rule is significant within the meaning of
Executive Order 12866 and has
reviewed the rule under that order.
Updates From the NPRM
The NPRM analysis assessed the
benefits and costs of self-enacting
statutory requirements as well as
discretionary provisions. The analysis
for the final rule clarifies which
provisions are discretionary and
assesses their benefits and costs
separately, as described in ‘‘Baseline.’’
In addition, as described in ‘‘II.N.
Regulatory Impact Analysis,’’
commenters on the NPRM requested
that FTA reevaluate the staff and laborhour assumptions it used to estimate
costs for regulated entities to meet the
requirements of the rule. After
reviewing the assumptions, FTA made
the following changes, which
incorporate all the comments involving
discretionary provisions of the
rulemaking:
• De-escalation training: Added 2
hours in the first year and 2 hours in
later years for agency staff to track
employee training. The NPRM did not
include hours for tracking employee
training.
• Continuous Improvement: Added 2
hours per year for the Accountable
Executive to participate. The NPRM did
not include hours for the Accountable
Executive.
Overview and Need for Regulation
The final rule adds requirements for
transit agencies subject to the existing
regulation for Public Transportation
Agency Safety Plans. The applicable
agencies include all RTAs and all transit
agencies receiving section 5307 funding.
Most provisions implement selfenacting statutory amendments made by
the Bipartisan Infrastructure Law to 49

25733

U.S.C. 5329. Agencies in large
urbanized areas must incorporate deescalation training into their safety
training programs and incorporate
guidelines for infectious disease
exposure into their safety management
system processes. Agencies serving
urbanized areas with 200,000 or more
people must establish safety
committees, safety risk reduction
programs with safety performance
targets, and include maintenance
workers in their safety training
programs. The agencies must allocate at
least 0.75 percent of their section 5307
funding to eligible safety projects. If an
agency does not meet a safety
performance target established under its
safety risk reduction program, it will
need to allocate its set-aside funding to
projects that are reasonably likely to
assist the agency in meeting the target.
Agencies serving urbanized areas with
fewer than 200,000 people must develop
their agency safety plans in cooperation
with frontline transit worker
representatives.
The final rule also includes
discretionary requirements. The rule
extends the de-escalation training
requirement to all transit agencies
subject to part 673. In addition, small
public transportation providers must
establish continuous improvement
processes to assess safety performance;
previous regulation required transit
agencies to establish continuous
improvement processes but exempted
small public transportation providers.
Baseline for Analysis
The rule implements self-enacting
statutory requirements as well as
discretionary elements. Circular A–4 (p.
12) notes that, in such cases, the
analysis can use a with-statute baseline,
focusing on the discretionary elements
of the rule and potential alternatives.
Table 2 outlines the statutory and
discretionary elements of the final rule.

TABLE 2—STATUTORY AND DISCRETIONARY RULE ELEMENTS
Provision

Statutory elements

khammond on DSKJM1Z7X2PROD with RULES2

Safety Committee

De-escalation training.
Risk Reduction
Program.
Continuous improvement.

VerDate Sep<11>2014

Statutory citation

Require transit providers in large UZAs to establish
safety committees.
Require the plurality union to choose frontline worker
representatives for the Safety Committee.
Require the Safety Committee to approve the Agency
Safety Plan and conduct certain SMS activities.
Require transit providers in large UZAs to incorporate
de-escalation training into safety training programs.
Require transit providers in large UZAs to establish
safety risk reduction programs with safety performance targets and engage in performance monitoring.
...........................................................................................

17:15 Apr 10, 2024

Jkt 262001

PO 00000

Frm 00041

Discretionary elements

49 U.S.C. 5329(d)(5).
49 U.S.C. 5329(d)(5)(A)(ii)(I).
49 U.S.C. 5329(d)(1)(A); 49 U.S.C.
5329(d)(5)(A)(iii).
49 U.S.C. 5329(d)(1)(H) ....................

Extend new requirement to all transit agencies subject to part 673.

49 U.S.C. 5329(d)(1)(I); 49 U.S.C.
5329(d)(4).
............................................................

Fmt 4701

Sfmt 4700

E:\FR\FM\11APR2.SGM

Extend existing requirements for continuous
improvement processes to small public
transportation providers.

11APR2

25734

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
TABLE 2—STATUTORY AND DISCRETIONARY RULE ELEMENTS—Continued

Provision

Statutory elements

Frontline transit
worker cooperation.
Section 5307 funding allocation.

Require small transit providers to develop agency safety
plans in cooperation with frontline transit worker representatives.
Requires transit providers in large UZAs to allocate at
least 0.75 of Section 5307 funding to eligible safety
projects and re reallocate the set-aside when risk reduction performance targets are not met.

Benefits
The requirements for de-escalation
training and continuous improvement
processes are predicted to reduce the
risk of fatalities and injuries for transit
workers, passengers, drivers, and
pedestrians if transit agencies adopt
safety risk mitigations that they would
not have adopted otherwise. Example
mitigations include bus sensors and
surveillance systems to detect objects
and pedestrians, and bus operator
barriers to protect drivers. At the same
time, some mitigations, like deescalation training for transit operators,
have already been widely adopted.
While FTA expects that providers will
be more likely to adopt safety risk

Statutory citation

Discretionary elements

49 U.S.C. 5329(d)(1)(B).

49 U.S.C. 5329(d)(4)(B)–(D)).

mitigations after implementing
continuous improvement processes, it
does not have information to quantify or
monetize potential benefits.
Costs
All transit agencies subject to part 673
will incur costs to meet the new
requirement for de-escalation training,
and small public transportation
providers will incur costs to meet the
new requirement for continuous
improvement processes. FTA
determined that the requirements would
affect 572 transit agencies (299
providers in large UZAs; 273 providers
in small UZAs) and 62 rail transit
authorities (58 in large UZAs; 4 in small
UZAs), as well as 3 large agencies in

small UZAs. While FTA will incur costs
to notify agencies, update technical
assistance resources, and conduct
training, the expected costs are minimal.
To estimate the value of staff time
spent on the requirements, FTA used
occupational wage data from the Bureau
of Labor Statistics as of May 2021 (Table
3).37 FTA used median hourly wages for
workers in the Transit and Ground
Passenger Transportation industry
(North American Industry Classification
System code 485000) as a basis for the
estimates, multiplied by 1.62 to account
for employer benefits.38 FTA then used
the estimates to calculate costs for the
first ten years of the rule from 2024—
the assumed effective date of the rule—
to 2033.

TABLE 3—OCCUPATIONAL CATEGORIES AND WAGES USED TO VALUE STAFF TIME
[$2021]
Staff

Occupational category

Code

Frontline personnel .......................
HR manager .................................
Accountable Executive .................
Chief Safety Officer ......................
Safety manager ............................

Transportation and Material Moving Occupations ...........
Human Resources Managers ...........................................
General and Operations Manager ....................................
Health and Safety Engineers ...........................................
Occupational Health and Safety Specialists ....................

53–0000
11–3121
11–1021
17–2111
19–5011

Median
hourly wage
$22.10
45.64
45.60
49.21
37.29

Wage with
benefits
$35.72
73.77
73.70
79.54
60.27

Source: Bureau of Labor Statistics, May 2021 National Occupational Employment and Wage Estimates.

De-Escalation Training

khammond on DSKJM1Z7X2PROD with RULES2

Table 4 outlines the estimated staff
and labor hours for transit providers and
rail transit agencies in small UZAs (273
small agencies; 3 large agencies; 4 rail
transit authorities) to engage in deescalation training and track employee
training activities. Almost all agencies
established programs after the

37 Bureau of Labor Statistics (March 2022). ‘‘May
2021 National Occupational Employment and Wage
Estimates: United States.’’ https://www.bls.gov/oes/
2021/may/oes_nat.htm.
38 Multiplier derived using Bureau of Labor
Statistics data on employer costs for employee
compensation for June 2022 (https://www.bls.gov/
news.release/archives/ecec_09202022.pdf).
Employer costs for state and local government

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Transportation Security Administration
issued a security directive in January
2021 requiring mask use on public
transportation.39 The directive, which is
no longer in effect as of April 2022,40
required agencies to brief employees
responsible for enforcing the directive.
Agencies established de-escalation
training programs as part of their

briefings, and FTA developed free
online training resources allowing
frontline employees to complete
training by themselves.41 For these
reasons, FTA estimates that 95 percent
of employees already receive training,
although agencies may not already
engage in tracking of the training.

workers averaged $55.47 an hour, with $34.23 for
wages and $21.25 for benefit costs. To estimate full
costs from wages, one would use a multiplier of
$55.47/$34.23, or 1.62.
39 Transportation Security Administration
(January 31, 2021). ‘‘Security Directive SD 1582/84–
21–01.’’ https://www.tsa.gov/sites/default/files/sd1582_84-21-01.pdf.

40 Transportation Security Administration (April
18, 2022). ‘‘Statement regarding face mask use on
public transportation.’’ https://www.tsa.gov/news/
press/statements/2022/04/18/statement-regardingface-mask-use-public-transportation.
41 Federal Transit Administration (October 2023).
‘‘FTA-Sponsored Training Courses.’’ https://
www.transit.dot.gov/regulations-and-guidance/
safety/fta-sponsored-training-courses.

PO 00000

Frm 00042

Fmt 4701

Sfmt 4700

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

25735

TABLE 4—STAFF AND HOURS NEEDED TO MEET DE-ESCALATION TRAINING REQUIREMENTS
First-year
hours

Affected entities

Staff

280 providers and RTAs in small UZAs .....

Frontline personnel (5% of 14,800 employees; 740 employees
total).
HR manager (1 per entity) .............................................................

Annual
hours
2

0.25

2

2

Note: For the de-escalation training requirement, FTA uses an estimate of 0.5 hours every two years, for an average of 0.25 hours a year.

The training and tracking have
estimated first-year costs of $94,000 in

the first year and annual costs of
$55,000 in later years (Table 5).

TABLE 5—FIRST-YEAR AND ANNUAL COSTS FOR DE-ESCALATION TRAINING
Number

Wage with
benefits

Hours

Total

First-year costs:
Frontline personnel ...................................................................................
HR managers ...........................................................................................

740
280

2
2

$35.72
73.77

$52,866
41,311

First-year total ...................................................................................

........................

........................

........................

94,177

Annual costs:
Frontline personnel ...................................................................................
HR managers ...........................................................................................

740
280

0.5
2

35.72
73.77

13,216
41,311

Annual total .......................................................................................

........................

........................

........................

54,528

Continuous Improvement Processes

providers to maintain and establish
continuous improvement processes. The
hours include time to update the

Table 5 outlines the estimated staff
and labor hours for small transit

Agency Safety Plan to reflect new
processes and to complete an annual
assessment of safety performance.

TABLE 5—STAFF AND HOURS NEEDED TO MEET CONTINUOUS IMPROVEMENT PROCESS REQUIREMENTS
First-year
hours

Affected entities

Staff

572 small public transit providers ...............

Accountable Executive (1 per entity) .............................................
Chief Safety Officer (1 per entity) ..................................................
Safety manager (1 per entity) ........................................................

The continuous improvement
processes have estimated first-year costs
of $244,000 in the first year and annual

Annual
hours
2
2
2

4
4
8

costs of $626,000 in later years (Table
6).

TABLE 6—FIRST-YEAR AND ANNUAL COSTS FOR CONTINUOUS IMPROVEMENT PROCESSES

khammond on DSKJM1Z7X2PROD with RULES2

Number

Wage with
benefits

Hours

Total

First-year costs:
Accountable Executive .............................................................................
Chief Safety Officer ..................................................................................
Safety manager ........................................................................................

572
572
572

2
2
2

$73.70
79.54
60.27

$84,313
90,994
68,949

First-year total ...................................................................................

........................

........................

........................

244,255

Annual costs:
Accountable Executive .............................................................................
Chief Safety Officer ..................................................................................
Safety manager ........................................................................................

572
572
572

4
4
8

73.70
79.54
60.27

168,626
181,988
275,796

Annual total .......................................................................................

........................

........................

........................

626,409

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

PO 00000

Frm 00043

Fmt 4701

Sfmt 4700

E:\FR\FM\11APR2.SGM

11APR2

25736

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

Total Costs

processes have total estimated costs of
$339,000 (2021 dollars) in the first year

The requirements for de-escalation
training and continuous improvement

and annual costs of $680,000 in later
years (Table 7).

TABLE 7—FIRST-YEAR COSTS AND ANNUAL COSTS FOR ADMINISTRATIVE AND REPORTING REQUIREMENTS
[$2021]
Requirement

First-year costs

Annual costs

De-escalation training ......................................................................................................................................
Continuous improvement processes ...............................................................................................................

$94,177
244,255

$54,528
626,409

Total ..........................................................................................................................................................

338,432

680,936

Summary

estimated costs of $6.5 million in 2021
dollars. On an annualized basis
(discounted to 2023), the rule has
estimated costs of $642,000 at a 3
percent discount rate and $635,000 at 7

Table 8 summarizes the economic
effects of the final rule. Over the tenyear analysis period, the rule has

percent. To quantify benefits and assess
net benefits, FTA would need
information on the specific safety
interventions transit agencies would
adopt to address the requirements

TABLE 8—SUMMARY OF ECONOMIC EFFECTS, 2023–2033
[$2021, discounted to 2023]
Total
(undiscounted)

Item

khammond on DSKJM1Z7X2PROD with RULES2

Benefits ................................................................................................................................
Costs:
De-escalation training ...................................................................................................
Continuous improvement processes ............................................................................
Total costs .............................................................................................................
Net benefits ...........................................................................................................

Regulatory Alternatives
While most requirements in the final
rule are statutorily mandated, the rule
includes two discretionary elements: deescalation training for all transit
agencies subject to part 673; and
continuous improvement for small
public transportation providers. In
developing the rule, FTA considered
whether to adopt the statutorily
mandated requirements without
modification. Because the rule uses a
with-statute baseline for analysis, the
rule would not have incremental costs
or benefits under this regulatory
alternative.
For de-escalation training, FTA
considered data reported to the NTD on
assaults on transit workers and found
that these assaults occur on transit
systems that serve large urbanized areas
as well as those that serve small
urbanized areas. Preliminary NTD data
show that agencies serving small
urbanized areas reported more than 300
assaults on transit workers from January
1, 2023 to December 31, 2023. FTA
expects the number to increase after
2023 data are finalized and annual
submissions from hundreds of smaller
agencies are added. For this reason, FTA
believes that requiring de-escalation
training for operations personnel and
personnel directly responsible for safety

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Annualized
(3% discount)

Annualized
(7% discount)

Unquantified

..........................

..........................

$584,925
5,881,933
6,466,858
Unquantified

$59,040
582,913
641,954
..........................

$59,803
575,558
635,362
..........................

at all transit agencies subject to part 673
is appropriate and necessary to enhance
safety for all transit workers and users
of transportation, not just those in large
urbanized areas. To minimize the deescalation training burden on all transit
agencies subject to part 673, FTA has
made de-escalation training freely
available to all transit agencies via the
FTA-sponsored Assault Awareness and
Prevention for Transit Operators courses
offered by the National Transit
Institute.42
For continuous improvement, FTA
believes that requiring the processes for
small public transportation providers
eliminates possible inconsistencies in
enforcement among small public
transportation providers: some small
public transportation providers operate
in large urbanized areas and are
therefore subject to statutory
requirements for continuous
improvement. In addition, small public
transportation providers are already
required to set safety performance
targets based on the safety performance
measures established in the National
Safety Plan. Based on the experience
that the providers have gained by
42 Federal Transit Administration (October 2023).
‘‘FTA-Sponsored Training Courses.’’ https://
www.transit.dot.gov/regulations-and-guidance/
safety/fta-sponsored-training-courses.

PO 00000

Frm 00044

Fmt 4701

Sfmt 4700

operating SMS and carrying out
required safety performance
measurement activities, FTA expects
that the providers will be able to
formalize their continuous improvement
activities and document them in their
ASP.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA) (5 U.S.C. 601 et seq.) requires
Federal agencies to assess the impact of
a regulation on small entities unless the
agency determines that the regulation is
not expected to have a significant
economic impact on a substantial
number of small entities. FTA has
determined that the final rule does not
have a significant effect on a substantial
number of small entities.
Most provisions in the final rule
implement self-enacting statutory
amendments made by the Bipartisan
Infrastructure Law to 49 U.S.C. 5329,
although some provisions are
discretionary. The provisions include
extending the de-escalation training
requirement to all transit agencies
subject to part 673, as well as requiring
small public transportation providers to
establish continuous improvement
processes.
Under the Act, local governments and
other public-sector organizations qualify

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
as a small entity if they serve a
population of less than 50,000. The rule
affects 280 agencies in small UZAs, with
some qualifying as small entities under
the Regulatory Flexibility Act. FTA
estimates that, to meet the ongoing
annual requirements for continuous
improvement processes, a transit agency
will need 4 hours of time for a Chief
Safety Officer, 8 hours for a safety
manager, and 2 hours for an
Accountable Executive. To meet the
ongoing annual requirements for deescalation training, employees of a
single agency would spend an average
of 0.5 hours on annual refresher
training, with an HR manager spending
2 hours on tracking and reporting. Using
occupational wage data from the Bureau
of Labor Statistics as of May 2021, FTA
estimates the value of the time spent at
$1,068.00, which would not have a
significant effect on the agency.
Unfunded Mandates Reform Act of 1995
FTA has determined that this rule
does not impose unfunded mandates, as
defined by the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4,
March 22, 1995). This rule does not
include a Federal mandate that may
result in the expenditure by State, local,
and tribal governments, in the aggregate,
or by the private sector of $100 million
or more (adjusted for inflation) in any
one year. Additionally, the definition of
‘‘Federal mandate’’ in the Unfunded
Mandates Reform Act excludes financial
assistance of the type in which State,
local, or tribal governments have
authority to adjust their participation in
the program in accordance with changes
made in the program by the Federal
Government. The Federal Transit Act
permits this type of flexibility.

khammond on DSKJM1Z7X2PROD with RULES2

Executive Order 13132 (Federalism
Assessment)
Executive Order 13132 requires
agencies to assure meaningful and
timely input by State and local officials
in the development of regulatory
policies that may have a substantial
direct effect on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. This action has
been analyzed in accordance with the
principles and criteria contained in
Executive Order 13132, dated August 4,
1999, and FTA determined this action
will not have a substantial direct effect
or sufficient federalism implications on
the States. FTA also determined this
action will not preempt any State law or
regulation or affect the States’ ability to

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

discharge traditional State governmental
functions.
Executive Order 12372
(Intergovernmental Review)
The regulations implementing
Executive Order 12372 regarding
intergovernmental consultation on
Federal programs and activities apply to
this program.
Paperwork Reduction Act
In compliance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.) (PRA), and the White House
Office of Management and Budget’s
(OMB) implementing regulation at 5
CFR 1320.8(d), FTA is seeking approval
from OMB for a currently approved
information collection that is associated
with an existing regulation. The
information collection (IC) was
previously approved on October 4,
2022. However, this submission
includes revised requirements
authorized by the Bipartisan
Infrastructure Law, including
cooperation with frontline transit
worker representatives in the
development of an Agency Safety Plan
(ASP), establishment of a Safety
Committee, Safety Committee approval
of an ASP, establishment of a safety risk
reduction program for transit
operations, establishment of safety
performance targets for the safety risk
reduction program, and establishment of
strategies to minimize exposure to
infectious diseases.
OMB Control Number: 2132–0580.
Type of Collection: Operators of
public transportation systems.
Type of Review: OMB Clearance.
Previously Approved Information
Collection Request.
Summary of the Collection: The
information collection includes (1) the
development and certification of a
Public Transportation Agency Safety
Plan; (2) the implementation and
documentation of the SMS approach; (3)
associated recordkeeping; and (4)
periodic requests.
Need for and Expected Use of the
Information to be Collected: Collection
of information for this program is
necessary to ensure that operators of
public transportation systems are
performing their safety responsibilities
and activities required by law at 49
U.S.C. 5329(d). Without the collection
of this information, FTA would be
unable to determine each recipient’s
and State’s compliance with 49 U.S.C.
5329(d).
Respondents: Respondents include
operators of public transportation as
defined under 49 U.S.C. 5302. FTA is
deferring regulatory action at this time

PO 00000

Frm 00045

Fmt 4701

Sfmt 4700

25737

on recipients of FTA financial
assistance under 49 U.S.C. 5310 and/or
49 U.S.C. 5311, unless those recipients
operate rail transit. The total number of
respondents is 758. This figure includes
186 respondents that are States, rail
fixed guideway systems, or large bus
systems that receive Urbanized Area
Formula Program funds under 49 U.S.C.
5307. This figure also includes 572
respondents that receive Urbanized
Area Formula Program funds under 49
U.S.C. 5307, operate one hundred or
fewer vehicles in revenue service, and
do not operate rail fixed guideway
service that may draft and certify their
own safety plans.
Frequency: Annual, Periodic.
National Environmental Policy Act
Federal agencies are required to adopt
implementing procedures for the
National Environmental Policy Act
(NEPA) that establish specific criteria
for, and identification of, three classes
of actions: (1) Those that normally
require preparation of an Environmental
Impact Statement, (2) those that
normally require preparation of an
Environmental Assessment, and (3)
those that are categorically excluded
from further NEPA review (40 CFR
1507.3(b)). This rule qualifies for
categorical exclusions under 23 CFR
771.118(c)(4) (planning and
administrative activities that do not
involve or lead directly to construction).
FTA has evaluated whether the rule will
involve unusual or extraordinary
circumstances and has determined that
it will not.
Executive Order 12630 (Taking of
Private Property)
FTA has analyzed this rule under
Executive Order 12630, Governmental
Actions and Interference with
Constitutionally Protected Property
Rights. FTA does not believe this rule
affects a taking of private property or
otherwise has taking implications under
Executive Order 12630.
Executive Order 12988 (Civil Justice
Reform)
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
Executive Order 13045 (Protection of
Children)
FTA has analyzed this rule under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. FTA certifies
that this action will not cause an
environmental risk to health or safety

E:\FR\FM\11APR2.SGM

11APR2

25738

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

that might disproportionately affect
children.
Executive Order 13175 (Tribal
Consultation)
FTA has analyzed this rule under
Executive Order 13175, dated November
6, 2000, and believes that it will not
have substantial direct effects on one or
more Indian tribes; will not impose
substantial direct compliance costs on
Indian tribal governments; and will not
preempt tribal laws. Therefore, a tribal
summary impact statement is not
required.
Executive Order 13211 (Energy Effects)
FTA has analyzed this action under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. FTA has
determined that this action is not a
significant energy action under that
order and 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.

khammond on DSKJM1Z7X2PROD with RULES2

Executive Orders 14096, 12898
(Environmental Justice)
Executive Order 14096 (Revitalizing
Our Nation’s Commitment to
Environmental Justice for All) (Apr. 21,
2023) (which builds upon Executive
Order 12898) and DOT Order 5610.2(a)
(77 FR 27534, May 10, 2012) 43 require
DOT agencies to make achieving
environmental justice (EJ) part of their
mission consistent with statutory
authority by identifying, analyzing, and
addressing, as appropriate,
disproportionate and adverse human
health or environmental effects,
including those related to climate
change and cumulative impacts of
environmental and other burdens on
communities with EJ concerns. All DOT
agencies seek to advance these policy
goals and to engage in this analysis as
appropriate in rulemaking activities. On
August 15, 2012, FTA’s Circular 4703.1
became effective, which contains
guidance for recipients of FTA financial
assistance to incorporate EJ principles
into plans, projects, and activities.44
43 Department of Transportation Updated
Environmental Justice Order 5610.2(a): Actions to
Address Environmental Justice in Minority
Populations and Low-Income Populations, 77 FR
27534 (May 10, 2012). https://
www.transportation.gov/transportation-policy/
environmental-justice/department-transportationorder-56102a.
44 Federal Transit Administration (February
2020). ‘‘Environmental Justice Policy Guidance for
Federal Transit Administration Recipients.’’ https://
www.transit.dot.gov/regulations-and-guidance/ftacirculars/environmental-justice-policy-guidancefederal-transit.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

FTA has evaluated this action under
its environmental justice policies and
FTA has determined that this action
will not cause disproportionate and
adverse human health and
environmental effects on communities
with EJ concerns.
Regulation Identifier Number
A Regulation Identifier 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 number contained in the
heading of this document can be used
to cross-reference this rule with the
Unified Agenda.
List of Subjects in 49 CFR Part 673
Mass transportation, Reporting and
recordkeeping requirements, Safety.
Veronica Vanterpool,
Acting Administrator.

In consideration of the foregoing, and
under the authority of 49 U.S.C. 5329
and 5334, and the delegation of
authority at 49 CFR 1.91, the Federal
Transit Administration revises 49 CFR
part 673 to read as follows:

■

PART 673—PUBLIC
TRANSPORTATION AGENCY SAFETY
PLANS
Subpart A—General
Sec.
673.1
673.3
673.5

Applicability.
Policy.
Definitions.

673.11 General requirements.
673.13 Certification of compliance.
673.15 Coordination with metropolitan,
statewide, and non-metropolitan
planning processes.
Subpart C—Safety Committees and
Cooperation With Frontline Transit Worker
Representatives
673.17 Cooperation with frontline transit
worker representatives.
673.19 Safety Committees.
Subpart D—Safety Management Systems
General requirements.
Safety Management Policy.
Safety Risk Management.
Safety Assurance.
Safety Promotion.

Subpart E—Safety Plan Documentation and
Recordkeeping
673.31

Safety plan documentation.

Authority: 49 U.S.C. 5329, 5334; 49 CFR
1.91.

PO 00000

Frm 00046

Fmt 4701

§ 673.1

Sfmt 4700

Applicability.

(a) This part applies to any State, local
governmental authority, and any other
operator of a public transportation
system that receives Federal financial
assistance under 49 U.S.C. chapter 53.
(b) This part does not apply to an
operator of a public transportation
system that only receives Federal
financial assistance under 49 U.S.C.
5310, 49 U.S.C. 5311, or both 49 U.S.C.
5310 and 49 U.S.C. 5311 unless it
operates a rail fixed guideway public
transportation system.
§ 673.3

Policy.

The Federal Transit Administration
(FTA) has adopted the principles and
methods of Safety Management Systems
(SMS) as the basis for enhancing the
safety of public transportation in the
United States. FTA will follow the
principles and methods of SMS in its
development of rules, regulations,
policies, guidance, best practices, and
technical assistance administered under
the authority of 49 U.S.C. 5329. This
part sets standards for the Public
Transportation Agency Safety Plan,
which will be responsive to FTA’s
Public Transportation Safety Program,
and reflect the specific safety objectives,
standards, and priorities of each transit
agency. Each Public Transportation
Agency Safety Plan will incorporate
SMS principles and methods tailored to
the size, complexity, and scope of the
public transportation system and the
environment in which it operates.
§ 673.5

Subpart B—Safety Plans

673.21
673.23
673.25
673.27
673.29

Subpart A—General

Definitions.

As used in this part:
Accountable Executive means a
single, identifiable person who has
ultimate responsibility for carrying out
the Public Transportation Agency Safety
Plan of a transit agency; responsibility
for carrying out the transit agency’s
Transit Asset Management Plan; and
control or direction over the human and
capital resources needed to develop and
maintain both the transit agency’s
Public Transportation Agency Safety
Plan, in accordance with 49 U.S.C.
5329(d), and the transit agency’s Transit
Asset Management Plan in accordance
with 49 U.S.C. 5326.
Assault on a transit worker means, as
defined under 49 U.S.C. 5302, a
circumstance in which an individual
knowingly, without lawful authority or
permission, and with intent to endanger
the safety of any individual, or with a
reckless disregard for the safety of
human life, interferes with, disables, or
incapacitates a transit worker while the

E:\FR\FM\11APR2.SGM

11APR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
transit worker is performing the duties
of the transit worker.
CDC means the Centers for Disease
Control and Prevention of the United
States Department of Health and Human
Services.
Chief Safety Officer means an
adequately trained individual who has
responsibility for safety and reports
directly to a transit agency’s chief
executive officer, general manager,
president, or equivalent officer. A Chief
Safety Officer may not serve in other
operational or maintenance capacities,
unless the Chief Safety Officer is
employed by a transit agency that is a
small public transportation provider as
defined in this part, or a public
transportation provider that does not
operate a rail fixed guideway public
transportation system.
Direct recipient means an entity that
receives Federal financial assistance
directly from the Federal Transit
Administration.
Emergency means, as defined under
49 U.S.C. 5324, a natural disaster
affecting a wide area (such as a flood,
hurricane, tidal wave, earthquake,
severe storm, or landslide) or a
catastrophic failure from any external
cause, as a result of which the Governor
of a State has declared an emergency
and the Secretary has concurred; or the
President has declared a major disaster
under section 401 of the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5170).
Equivalent entity means an entity that
carries out duties similar to that of a
Board of Directors, for a recipient or
subrecipient of FTA funds under 49
U.S.C. chapter 53, including sufficient
authority to review and approve a
recipient or subrecipient’s Public
Transportation Agency Safety Plan.
FTA means the Federal Transit
Administration, an operating
administration 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 public transportation
system; or damage to the environment.
Injury means any harm to persons as
a result of an event that requires
immediate medical attention away from
the scene.
Investigation means the process of
determining the causal and contributing
factors of a safety event or hazard, for
the purpose of preventing recurrence
and mitigating safety risk.
Joint labor-management process
means a formal approach to discuss
topics affecting transit workers and the
public transportation system.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Large urbanized area provider means
a recipient or subrecipient of financial
assistance under 49 U.S.C. 5307 that
serves an urban area with a population
of 200,000 or more as determined by the
most recent decennial Census.
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.
Near-miss means a narrowly avoided
safety event.
Operator of a public transportation
system means a provider of public
transportation.
Performance measure means an
expression based on a quantifiable
indicator of performance or condition
that is used to establish targets and to
assess progress toward meeting the
established targets.
Potential consequence means the
effect of a hazard.
Public transportation means, as
defined under 49 U.S.C. 5302, regular,
continuing shared-ride surface
transportation services that are open to
the general public or open to a segment
of the general public defined by age,
disability, or low income; and does not
include:
(1) Intercity passenger rail
transportation provided by the entity
described in 49 U.S.C. chapter 243 (or
a successor to such entity);
(2) Intercity bus service;
(3) Charter bus service;
(4) School bus service;
(5) Sightseeing service;
(6) Courtesy shuttle service for
patrons of one or more specific
establishments; or
(7) Intra-terminal or intra-facility
shuttle services.
Public Transportation Agency Safety
Plan means the documented
comprehensive agency safety plan for a
transit agency that is required by 49
U.S.C. 5329 and this part.
Rail fixed guideway public
transportation system means any fixed
guideway system, or any such system in
engineering or construction, 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. These include but are
not limited to rapid rail, heavy rail, light
rail, monorail, trolley, inclined plane,
funicular, and automated guideway.
Rail transit agency means any entity
that provides services on a rail fixed
guideway public transportation system.
Recipient means a State or local
governmental authority, or any other
operator of a public transportation
system, that receives financial
assistance under 49 U.S.C. chapter 53.

PO 00000

Frm 00047

Fmt 4701

Sfmt 4700

25739

Roadway means land on which rail
transit tracks and support infrastructure
have been constructed to support the
movement of rail transit vehicles,
excluding station platforms.
Safety Assurance means processes
within a transit agency’s Safety
Management System that functions to
ensure the implementation and
effectiveness of safety risk mitigation,
and to ensure that the transit agency
meets or exceeds its safety objectives
through the collection, analysis, and
assessment of information.
Safety Committee means the formal
joint labor-management committee on
issues related to safety that is required
by 49 U.S.C. 5329 and this part.
Safety event means an unexpected
outcome resulting in injury or death;
damage to or loss of the facilities,
equipment, rolling stock, or
infrastructure of a public transportation
system; or damage to the environment.
Safety Management management
Policy means a transit agency’s
documented commitment to safety,
which defines the transit agency’s safety
objectives and the accountabilities and
responsibilities for the management of
safety.
Safety Management System (SMS)
means the formal, organization-wide
approach to managing safety risk and
assuring the effectiveness of a transit
agency’s safety risk mitigation. SMS
includes systematic procedures,
practices, and policies for managing
hazards and safety risk.
Safety Management System (SMS)
Executive means a Chief Safety Officer
or an equivalent.
Safety performance target means a
quantifiable level of performance or
condition, expressed as a value for the
measure, related to safety management
activities, to be achieved within a
specified time period.
Safety Promotion means a
combination of training and
communication of safety information to
support SMS as applied to the transit
agency’s public transportation system.
Safety risk means the composite of
predicted severity and likelihood of a
potential consequence of a hazard.
Safety risk assessment means the
formal activity whereby a transit agency
determines Safety Risk Management
priorities by establishing the
significance or value of its safety risk.
Safety risk management means a
process within a transit agency’s Public
Transportation Agency Safety Plan for
identifying hazards and analyzing,
assessing, and mitigating the safety risk
of their potential consequences.
Safety risk mitigation means a method
or methods to eliminate or reduce the

E:\FR\FM\11APR2.SGM

11APR2

25740

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

severity and/or likelihood of a potential
consequence of a hazard.
Safety set-aside means the allocation
of not less than 0.75 percent of
assistance received by a large urbanized
area provider under 49 U.S.C. 5307 to
safety-related projects eligible under 49
U.S.C. 5307.
Small public transportation provider
means a recipient or subrecipient of
Federal financial assistance under 49
U.S.C. 5307 that has one hundred (100)
or fewer vehicles in peak revenue
service across all non-rail fixed route
modes or in any one non-fixed route
mode and does not operate a rail fixed
guideway public transportation system.
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 of good repair means the
condition in which a capital asset is
able to operate at a full level of
performance.
State Safety Oversight Agency means
an agency established by a State that
meets the requirements and performs
the functions specified by 49 U.S.C.
5329(e) and (k) and the regulations set
forth in 49 CFR part 674.
Subrecipient means an entity that
receives Federal transit grant funds
indirectly through a State or a direct
recipient.
Transit agency means an operator of
a public transportation system that is a
recipient or subrecipient of Federal
financial assistance under 49 U.S.C.
5307 or a rail transit agency.
Transit Asset Management Plan
means the strategic and systematic
practice of procuring, operating,
inspecting, maintaining, rehabilitating,
and replacing transit capital assets to
manage their performance, risks, and
costs over their life cycles, for the
purpose of providing safe, cost-effective,
and reliable public transportation, as
required by 49 U.S.C. 5326 and 49 CFR
part 625.

khammond on DSKJM1Z7X2PROD with RULES2

Transit worker means any employee,
contractor, or volunteer working on
behalf of the transit agency.
Urbanized area means, as defined
under 49 U.S.C. 5302, an area
encompassing a population of 50,000 or
more that has been defined and
designated in the most recent decennial
census as an urban area by the Secretary
of Commerce.

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Subpart B—Safety Plans
§ 673.11

General requirements.

(a) A transit agency or State must
establish a Public Transportation
Agency Safety Plan that meets the
requirements of this part and, at a
minimum, consists of the following
elements:
(1) The Public Transportation Agency
Safety Plan, and subsequent updates,
must be signed by the Accountable
Executive and approved by—
(i) For a large urbanized area provider,
the Safety Committee established
pursuant to § 673.19, followed by the
transit agency’s Board of Directors or an
equivalent entity; or
(ii) For all other transit agencies, the
transit agency’s Board of Directors or an
equivalent entity.
(2) The Public Transportation Agency
Safety Plan must document the
processes and activities related to Safety
Management System (SMS)
implementation, as required under
subpart D of this part.
(3) The Public Transportation Agency
Safety Plan must include annual safety
performance targets based on the safety
performance measures established
under the National Public
Transportation Safety Plan. Safety
performance targets for the safety risk
reduction program are only required for
large urbanized area providers.
(4) The Public Transportation Agency
Safety Plan must address all applicable
requirements and standards as set forth
in FTA’s Public Transportation Safety
Program and the National Public
Transportation Safety Plan. Compliance
with the minimum safety performance
standards authorized under 49 U.S.C.
5329(b)(2)(C) is not required until
standards have been established through
the public notice and comment process.
(5) Each transit agency must establish
a process and timeline for conducting
an annual review and update of the
Public Transportation Agency Safety
Plan.
(6) A rail transit agency must include
or incorporate by reference in its Public
Transportation Agency Safety Plan:
(i) An emergency preparedness and
response plan or procedures that
addresses, at a minimum, the
assignment of transit worker
responsibilities during an emergency;
and coordination with Federal, State,
regional, and local officials with roles
and responsibilities for emergency
preparedness and response in the transit
agency’s service area;
(ii) Any policies and procedures
regarding rail transit workers on the

PO 00000

Frm 00048

Fmt 4701

Sfmt 4700

roadway the rail transit agency has
issued; and
(iii) The transit agency’s policies and
procedures developed in consultation
with the State Safety Oversight Agency
to provide access and required data for
the State Safety Oversight Agency’s riskbased inspection program.
(7) The Public Transportation Agency
Safety Plan of each large urbanized area
provider must include a safety risk
reduction program for transit operations
to improve safety performance by
reducing the number and rates of safety
events, injuries, and assaults on transit
workers. The safety risk reduction
program must, at a minimum:
(i) Address the reduction and
mitigation of vehicular and pedestrian
safety events involving transit vehicles
that includes safety risk mitigations
consistent with § 673.25(d)(3);
(ii) Address the reduction and
mitigation of assaults on transit workers
that includes safety risk mitigations
consistent with § 673.25(d)(4);
(iii) Include the safety performance
targets set by the Safety Committee
pursuant to § 673.19(d)(2) for the safety
risk reduction program performance
measures established in the National
Public Transportation Safety Plan.
These targets must be set—
(A) Based on a three-year rolling
average of the data submitted by the
large urbanized area provider to the
National Transit Database (NTD);
(B) For all modes of public
transportation; and
(C) Based on the level of detail the
large urbanized area provider is
required to report to the NTD. The
Safety Committee is not required to set
a target for a performance measure until
the large urbanized area provider has
been required to report three years of
data to the NTD corresponding to such
performance measure.
(iv) Include or incorporate by
reference the safety risk mitigations
identified and recommended by the
Safety Committee as described in
§ 673.25(d)(5).
(b) A transit agency may develop one
Public Transportation Agency Safety
Plan for all modes of service or may
develop a Public Transportation Agency
Safety Plan for each mode of service not
subject to safety regulation by another
Federal entity.
(c) A transit agency must maintain its
Public Transportation Agency Safety
Plan in accordance with the
recordkeeping requirements in subpart
E of this part.

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
(d) A State must draft and certify a
Public Transportation Agency Safety
Plan on behalf of any small public
transportation provider that is located in
that State. A State is not required to
draft a Public Transportation Agency
Safety Plan for a small public
transportation provider if that transit
agency notifies the State that it will
draft its own plan. In each instance, the
transit agency must carry out the plan.
If a State drafts and certifies a Public
Transportation Agency Safety Plan on
behalf of a transit agency, and the transit
agency later opts to draft and certify its
own Public Transportation Agency
Safety Plan, then the transit agency
must notify the State. The transit agency
has one year from the date of the
notification to draft and certify a Public
Transportation Agency Safety Plan that
is compliant with this part. The Public
Transportation Agency Safety Plan
drafted by the State will remain in effect
until the transit agency drafts its own
Public Transportation Agency Safety
Plan.
(e) Agencies that operate passenger
ferries regulated by the United States
Coast Guard (USCG) or rail fixed
guideway public transportation service
regulated by the Federal Railroad
Administration (FRA) are not required
to develop Public Transportation
Agency Safety Plans for those modes of
service.

khammond on DSKJM1Z7X2PROD with RULES2

§ 673.13

Certification of compliance.

(a) Each direct recipient, or State as
authorized in § 673.11(d), must certify
that it has established a Public
Transportation Agency Safety Plan
meeting the requirements of this part by
the start of operations. A direct recipient
must certify that it and all applicable
subrecipients are in compliance with
the requirements of this part. A State
Safety Oversight Agency must review
and approve a Public Transportation
Agency Safety Plan developed by a rail
fixed guideway public transportation
system, as authorized in 49 U.S.C.
5329(e) and its implementing
regulations at 49 CFR part 674.
(b) On an annual basis, a direct
recipient or State must certify its
compliance with this part. A direct
recipient must certify that it and all
applicable subrecipients are in
compliance with the requirements of
this part.
§ 673.15 Coordination with metropolitan,
statewide, and non-metropolitan planning
processes.

(a) A State or transit agency must
make its safety performance targets
available to States and Metropolitan

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Planning Organizations to aid in the
planning process.
(b) To the maximum extent
practicable, a State or transit agency
must coordinate with States and
Metropolitan Planning Organizations in
the selection of State and MPO safety
performance targets.
Subpart C—Safety Committees and
Cooperation With Frontline Transit
Worker Representatives
§ 673.17 Cooperation with frontline transit
worker representatives.

(a) Each large urbanized area provider
must establish a Safety Committee that
meets the requirements of § 673.19.
(b) Each transit agency that is not a
large urbanized area provider must:
(1) Develop its Public Transportation
Agency Safety Plan, and subsequent
updates, in cooperation with frontline
transit worker representatives; and
(2) Include or incorporate by reference
in its Public Transportation Agency
Safety Plan a description of how
frontline transit worker representatives
cooperate in the development and
update of the Public Transportation
Agency Safety Plan.
§ 673.19

Safety Committees.

(a) Establishing the Safety Committee.
Each large urbanized area provider must
establish and operate a Safety
Committee that is:
(1) Appropriately scaled to the size,
scope, and complexity of the transit
agency; and
(2) Convened by a joint labormanagement process.
(b) Safety Committee membership.
The Safety Committee must consist of
an equal number of frontline transit
worker representatives and management
representatives. To the extent
practicable, the Safety Committee must
include frontline transit worker
representatives from major transit
service functions, such as operations
and maintenance, across the transit
system.
(1) The labor organization that
represents the plurality of the transit
agency’s frontline transit workers must
select frontline transit worker
representatives for the Safety
Committee.
(2) If the transit agency’s frontline
transit workers are not represented by a
labor organization, the transit agency
must adopt a mechanism for frontline
transit workers to select frontline transit
worker representatives for the Safety
Committee.
(c) Safety Committee procedures.
Each large urbanized area provider must
include or incorporate by reference in

PO 00000

Frm 00049

Fmt 4701

Sfmt 4700

25741

its Public Transportation Agency Safety
Plan procedures regarding the
composition, responsibilities, and
operations of the Safety Committee
which, at a minimum, must address:
(1) The organizational structure, size,
and composition of the Safety
Committee and how it will be chaired;
(2) How meeting agendas and notices
will be developed and shared, and how
meeting minutes will be recorded and
maintained;
(3) Any required training for Safety
Committee members related to the
transit agency’s Public Transportation
Agency Safety Plan and the processes,
activities, and tools used to support the
transit agency’s SMS;
(4) The compensation policy
established by the agency for
participation in Safety Committee
meetings;
(5) How the Safety Committee will
access technical experts, including other
transit workers, to serve in an advisory
capacity as needed; transit agency
information, resources, and tools; and
submissions to the transit worker safety
reporting program to support its
deliberations;
(6) How the Safety Committee will
reach and record decisions;
(7) How the Safety Committee will
coordinate and communicate with the
transit agency’s Board of Directors, or
equivalent entity, and the Accountable
Executive;
(8) How the Safety Committee will
manage disputes to ensure it carries out
its operations. The Safety Committee
may use the dispute resolution or
arbitration process from the transit
agency’s Collective Bargaining
Agreement, or a different process that
the Safety Committee develops and
agrees upon, but the Accountable
Executive may not be designated to
resolve any disputes within the Safety
Committee; and
(9) How the Safety Committee will
carry out its responsibilities identified
in paragraph (d) of this section.
(d) Safety Committee responsibilities.
The Safety Committee must conduct the
following activities to oversee the transit
agency’s safety performance:
(1) Review and approve the transit
agency’s Public Transportation Agency
Safety Plan and any updates as required
at § 673.11(a)(1)(i);
(2) Set annual safety performance
targets for the safety risk reduction
program as required at
§ 673.11(a)(7)(iii); and
(3) Support operation of the transit
agency’s SMS by:
(i) Identifying and recommending
safety risk mitigations necessary to
reduce the likelihood and severity of

E:\FR\FM\11APR2.SGM

11APR2

25742

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

potential consequences identified
through the transit agency’s safety risk
assessment, including safety risk
mitigations associated with any instance
where the transit agency did not meet
an annual safety performance target in
the safety risk reduction program;
(ii) Identifying safety risk mitigations
that may be ineffective, inappropriate,
or were not implemented as intended,
including safety risk mitigations
associated with any instance where the
transit agency did not meet an annual
safety performance target in the safety
risk reduction program; and
(iii) Identifying safety deficiencies for
purposes of continuous improvement as
required at § 673.27(d), including any
instance where the transit agency did
not meet an annual safety performance
target in the safety risk reduction
program.
Subpart D—Safety Management
Systems
§ 673.21

General requirements.

Each transit agency must establish
and implement a Safety Management
System under this part. A transit agency
Safety Management System must be
appropriately scaled to the size, scope
and complexity of the transit agency
and include the following elements:
(a) Safety Management Policy as
described in § 673.23;
(b) Safety Risk Management as
described in § 673.25;
(c) Safety Assurance as described in
§ 673.27; and
(d) Safety Promotion as described in
§ 673.29.

khammond on DSKJM1Z7X2PROD with RULES2

§ 673.23

Safety Management Policy.

(a) A transit agency must establish its
organizational accountabilities and
responsibilities and have a written
statement of Safety Management Policy
that includes the transit agency’s safety
objectives and a description of the
transit agency’s Safety Committee or
approach to cooperation with frontline
transit worker representatives.
(b) A transit agency must establish
and implement a process that allows
transit workers to report safety
concerns, including assaults on transit
workers, near-misses, and unsafe acts
and conditions to senior management,
includes protections for transit workers
who report, and includes a description
of transit worker behaviors that may
result in disciplinary action.
(c) The Safety Management Policy
must be communicated throughout the
transit agency’s organization.
(d) The transit agency must establish
the necessary authorities,
accountabilities, and responsibilities for

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

the management of safety amongst the
following individuals or groups within
its organization, as they relate to the
development and management of the
transit agency’s SMS:
(1) Accountable Executive. The transit
agency must identify an Accountable
Executive. The Accountable Executive
is accountable for ensuring that the
transit agency’s SMS is effectively
implemented throughout the transit
agency’s public transportation system.
The Accountable Executive is
accountable for ensuring action is taken,
as necessary, to address substandard
performance in the transit agency’s
SMS. The Accountable Executive may
delegate specific responsibilities, but
the ultimate accountability for the
transit agency’s safety performance
cannot be delegated and always rests
with the Accountable Executive.
(i) The Accountable Executive of a
large urbanized area provider must
implement safety risk mitigations for the
safety risk reduction program that are
included in the Agency Safety Plan
under § 673.11(a)(7)(iv).
(ii) The Accountable Executive of a
large urbanized area provider receives
and must consider all other safety risk
mitigations recommended by the Safety
Committee, consistent with
requirements in §§ 673.19(d) and
673.25(d)(6).
(2) Chief Safety Officer or Safety
Management System (SMS) Executive.
The Accountable Executive must
designate a Chief Safety Officer or SMS
Executive who has the authority and
responsibility for day-to-day
implementation and operation of a
transit agency’s SMS. The Chief Safety
Officer or SMS Executive must hold a
direct line of reporting to the
Accountable Executive. A transit agency
may allow the Accountable Executive to
also serve as the Chief Safety Officer or
SMS Executive.
(3) Safety Committee. A large
urbanized area provider must establish
a joint labor-management Safety
Committee that meets the requirements
of § 673.19.
(4) Transit agency leadership and
executive management. A transit agency
must identify those members of its
leadership or executive management,
other than an Accountable Executive,
Chief Safety Officer, or SMS Executive,
who have authorities or responsibilities
for day-to-day implementation and
operation of a transit agency’s SMS.
(5) Key staff. A transit agency may
designate key staff, groups of staff, or
committees to support the Accountable
Executive, Chief Safety Officer, Safety
Committee, or SMS Executive in

PO 00000

Frm 00050

Fmt 4701

Sfmt 4700

developing, implementing, and
operating the transit agency’s SMS.
§ 673.25

Safety Risk Management.

(a) Safety Risk Management process.
A transit agency must develop and
implement a Safety Risk Management
process for all elements of its public
transportation system. The Safety Risk
Management process must be comprised
of the following activities: hazard
identification, safety risk assessment,
and safety risk mitigation.
(b) Hazard identification. (1) A transit
agency must establish methods or
processes to identify hazards and
potential consequences of the hazards.
(2) A transit agency must consider, as
a source for hazard identification:
(i) Data and information provided by
an oversight authority, including but not
limited to FTA, the State, or as
applicable, the State Safety Oversight
Agency having jurisdiction;
(ii) Data and information regarding
exposure to infectious disease provided
by the CDC or a State health authority;
and
(iii) Safety concerns identified
through Safety Assurance activities
carried out under § 673.27.
(c) Safety risk assessment. (1) A
transit agency must establish methods
or processes to assess the safety risk
associated with identified hazards.
(2) A safety risk assessment includes
an assessment of the likelihood and
severity of the potential consequences of
identified hazards, taking into account
existing safety risk mitigations, to
determine if safety risk mitigation is
necessary and to inform prioritization of
safety risk mitigations.
(d) Safety risk mitigation. (1) A transit
agency must establish methods or
processes to identify safety risk
mitigations or strategies necessary as a
result of the transit agency’s safety risk
assessment to reduce the likelihood and
severity of the potential consequences.
For large urbanized area providers,
these methods or processes must
address the role of the transit agency’s
Safety Committee.
(2) A transit agency must consider, as
a source for safety risk mitigation:
(i) Guidance provided by an oversight
authority, if applicable, and FTA; and
(ii) Guidelines to prevent or control
exposure to infectious diseases provided
by the CDC or a State health authority.
(3) When identifying safety risk
mitigations for the safety risk reduction
program related to vehicular and
pedestrian safety events involving
transit vehicles, including to address a
missed safety performance target set by
the Safety Committee under
§ 673.19(d)(2), each large urbanized area

E:\FR\FM\11APR2.SGM

11APR2

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations
provider and its Safety Committee must
consider mitigations to reduce visibility
impairments for transit vehicle
operators that contribute to accidents,
including retrofits to vehicles in
revenue service and specifications for
future procurements that reduce
visibility impairments.
(4) When identifying safety risk
mitigations for the safety risk reduction
program related to assaults on transit
workers, including to address a missed
safety performance target set by the
Safety Committee under § 673.19(d)(2),
each large urbanized area provider and
its Safety Committee must consider
deployment of assault mitigation
infrastructure and technology on transit
vehicles and in transit facilities. Assault
mitigation infrastructure and technology
includes barriers to restrict the
unwanted entry of individuals and
objects into the workstations of bus
operators.
(5) When a large urbanized area
provider’s Safety Committee, as part of
the transit agency’s safety risk reduction
program, identifies and recommends
under § 673.19(c)(6) safety risk
mitigations, including mitigations
relating to vehicular and pedestrian
safety events involving transit vehicles
or assaults on transit workers, based on
a safety risk assessment conducted
under § 673.25(c), the transit agency
must include or incorporate by
reference these safety risk mitigations in
its ASP pursuant to § 673.11(a)(7)(iv).
(6) When a large urbanized area
provider’s Safety Committee
recommends a safety risk mitigation
unrelated to the safety risk reduction
program, and the Accountable Executive
decides not to implement the safety risk
mitigation, the Accountable Executive
must prepare a written statement
explaining their decision, pursuant to
recordkeeping requirements at § 673.31.
The Accountable Executive must submit
and present this explanation to the
transit agency’s Safety Committee and
Board of Directors or equivalent entity.

khammond on DSKJM1Z7X2PROD with RULES2

§ 673.27

Safety Assurance.

(a) Safety Assurance process. A transit
agency must develop and implement a
Safety Assurance process, consistent
with this subpart. A rail fixed guideway
public transportation system, and a
recipient or subrecipient of Federal
financial assistance under 49 U.S.C.
chapter 53 that operates more than one
hundred vehicles in peak revenue
service, must include in its Safety
Assurance process each of the
requirements in paragraphs (b), (c), and
(d) of this section. A small public
transportation provider only must
include in its Safety Assurance process

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

the requirements in paragraphs (b) and
(d) of this section.
(b) Safety performance monitoring
and measurement. A transit agency
must establish activities to:
(1) Monitor its system for compliance
with, and sufficiency of, the transit
agency’s procedures for operations and
maintenance;
(2) Monitor its operations to identify
any safety risk mitigations that may be
ineffective, inappropriate, or were not
implemented as intended. For large
urbanized area providers, these
activities must address the role of the
transit agency’s Safety Committee;
(3) Conduct investigations of safety
events to identify causal factors; and
(4) Monitor information reported
through any internal safety reporting
programs.
(c) Management of change. (1) A
transit agency must establish a process
for identifying and assessing changes
that may introduce new hazards or
impact the transit agency’s safety
performance.
(2) If a transit agency determines that
a change may impact its safety
performance, then the transit agency
must evaluate the proposed change
through its Safety Risk Management
process.
(d) Continuous improvement. (1) A
transit agency must establish a process
to assess its safety performance
annually.
(i) This process must include the
identification of deficiencies in the
transit agency’s SMS and deficiencies in
the transit agency’s performance against
safety performance targets required in
§ 673.11(a)(3).
(ii) For large urbanized area providers,
this process must also address the role
of the transit agency’s Safety Committee,
and include the identification of
deficiencies in the transit agency’s
performance against annual safety
performance targets set by the Safety
Committee under § 673.19(d)(2) for the
safety risk reduction program required
in § 673.11(a)(7).
(iii) Rail transit agencies must also
address any specific internal safety
review requirements established by
their State Safety Oversight Agency.
(2) A large urbanized area provider
must monitor safety performance
against annual safety performance
targets set by the Safety Committee
under § 673.19(d)(2) for the safety risk
reduction program in § 673.11(a)(7).
(3) A large urbanized area provider
that does not meet an established
annual safety performance target set by
the Safety Committee under
§ 673.19(d)(2) for the safety risk

PO 00000

Frm 00051

Fmt 4701

Sfmt 4700

25743

reduction program in § 673.11(a)(7)
must:
(i) Assess associated safety risk, using
the methods or processes established
under § 673.25(c);
(ii) Mitigate associated safety risk
based on the results of a safety risk
assessment using the methods or
processes established under § 673.25(d).
The transit agency must include these
mitigations in the plan described at
§ 673.27(d)(4) and in the Agency Safety
Plan as described in § 673.25(d)(5); and
(iii) Allocate its safety set-aside in the
following fiscal year to safety-related
projects eligible under 49 U.S.C. 5307
that are reasonably likely to assist the
transit agency in meeting the safety
performance target in the future.
(4) A transit agency must develop and
carry out, under the direction of the
Accountable Executive, a plan to
address any deficiencies identified
through the safety performance
assessment as described in this section.
§ 673.29

Safety Promotion.

(a) Competencies and training. (1) A
transit agency must establish and
implement a comprehensive safety
training program that includes deescalation training, safety concern
identification and reporting training,
and refresher training for all operations
transit workers and transit workers
directly responsible for safety in the
transit agency’s public transportation
system. The training program must
include refresher training, as necessary.
(2) Large urbanized area providers
must include maintenance transit
workers in the safety training program.
(b) Safety communication. A transit
agency must communicate safety and
safety performance information
throughout the transit agency’s
organization that, at a minimum,
conveys information on hazards and
safety risk relevant to transit workers’
roles and responsibilities and informs
transit workers of safety actions taken in
response to reports submitted through a
transit worker safety reporting program.
A transit agency must also communicate
the results of cooperation with frontline
transit worker representatives as
described at § 673.17(b) or the Safety
Committee activities described in
§ 673.19.
Subpart E—Safety Plan Documentation
and Recordkeeping
§ 673.31

Safety plan documentation.

At all times, a transit agency must
maintain documents that set forth its
Public Transportation Agency Safety
Plan, including those related to the
implementation of its SMS, and results

E:\FR\FM\11APR2.SGM

11APR2

25744

Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Rules and Regulations

khammond on DSKJM1Z7X2PROD with RULES2

from SMS processes and activities. A
transit agency must maintain documents
that are included in whole, or by
reference, that describe the programs,
policies, and procedures that the transit
agency uses to carry out its Public

VerDate Sep<11>2014

17:15 Apr 10, 2024

Jkt 262001

Transportation Agency Safety Plan.
These documents must be made
available upon request by FTA or other
Federal entity, or a State or State Safety
Oversight Agency having jurisdiction. A
transit agency must maintain these

PO 00000

Frm 00052

Fmt 4701

Sfmt 9990

documents for a minimum of three years
after they are created.
[FR Doc. 2024–07514 Filed 4–10–24; 8:45 am]
BILLING CODE 4910–57–P

E:\FR\FM\11APR2.SGM

11APR2