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Rule2024-07514

Public Transportation Agency Safety Plans

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Published

April 11, 2024

Effective

May 13, 2024

Issuing agencies

Transportation DepartmentFederal Transit Administration

Abstract

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.

Full Text

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<title>Federal Register, Volume 89 Issue 71 (Thursday, April 11, 2024)</title>
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[Federal Register Volume 89, Number 71 (Thursday, April 11, 2024)]
[Rules and Regulations]
[Pages 25694-25744]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07514]

[[Page 25693]]

Vol. 89

Thursday,

No. 71

April 11, 2024

Part II

Department of Transportation

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Federal Transit Administration

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49 CFR Part 673

Public Transportation Agency Safety Plans; Final Rule

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

[[Page 25694]]

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 673

[Docket No. FTA-2023-0007]
RIN 2132-AB44

Public Transportation Agency Safety Plans

AGENCY: Federal Transit Administration (FTA), Department of
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: 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 <a href="https://www.transit.dot.gov/ptasp">https://www.transit.dot.gov/ptasp</a> for more information and to RSVP. Please
visit <a href="https://www.transit.dot.gov/ptasp">https://www.transit.dot.gov/ptasp</a> 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 <a href="/cdn-cgi/l/email-protection#682e3c29452306071f040d0c0f0d280c071c460f071e">[email&#160;protected]</a> at least
three business days prior to the event. If you have any questions,
please email <a href="/cdn-cgi/l/email-protection#91d7c5d0bcdafffee6fdf4f5f6f4d1f5fee5bff6fee7">[email&#160;protected]</a>.

FOR FURTHER INFORMATION CONTACT: For program matters, contact Stewart
Mader, Office of Transit Safety and Oversight, (202) 366-9677 or
<a href="/cdn-cgi/l/email-protection#7605021301170402581b171213043612190258111900">[email&#160;protected]</a>. For legal matters, contact Heather Ueyama,
Office of Chief Counsel, (202) 366-7374 or <a href="/cdn-cgi/l/email-protection#4b232e2a3f232e39653e2e322a262a0b2f243f652c243d">[email&#160;protected]</a>.
Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday,
except Federal holidays.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
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 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\
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\1\ Public Transportation Agency Safety Plans, 83 FR 34418
(2018) (Codified at 49 CFR part 673). <a href="https://www.federalregister.gov/documents/2018/07/19/2018-15167/public-transportation-agency-safety-plan">https://www.federalregister.gov/documents/2018/07/19/2018-15167/public-transportation-agency-safety-plan</a>.
\2\ Protecting Public Transportation Operators From the Risk of
Assault, 84 FR 24196 (May 24, 2019). <a href="https://www.federalregister.gov/documents/2019/05/24/2019-10281/protecting-public-transportation-operators-from-the-risk-of-assault">https://www.federalregister.gov/documents/2019/05/24/2019-10281/protecting-public-transportation-operators-from-the-risk-of-assault</a>.
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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.
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\3\ Federal Transit Administration (March 2020). ``Redesign of
Transit Bus Operator Compartment to Improve Safety, Operational
Efficiency, and Passenger Accessibility (Bus Operator Compartment)
Program.'' <a href="https://www.transit.dot.gov/research-innovation/redesign-transit-bus-operator-compartment-improve-safety-operational-efficiency">https://www.transit.dot.gov/research-innovation/redesign-transit-bus-operator-compartment-improve-safety-operational-efficiency</a>.
\4\ Federal Transit Administration (October 2021). ``Enhanced
Transit Safety and Crime Prevention Initiative.'' <a href="https://www.transit.dot.gov/regulations-and-programs/safety/enhanced-transit-safety-and-crime-prevention-initiative">https://www.transit.dot.gov/regulations-and-programs/safety/enhanced-transit-safety-and-crime-prevention-initiative</a>.
\5\ Federal Transit Administration (September 2021). ``Federal
Transit Administration Announces Request for Information on Transit
Worker Safety.'' <a href="https://www.transit.dot.gov/about/news/federal-transit-administration-announces-request-information-transit-worker-safety">https://www.transit.dot.gov/about/news/federal-transit-administration-announces-request-information-transit-worker-safety</a>.
\6\ Federal Transit Administration (October 2023). ``FTA-
Sponsored Training Courses.'' <a href="https://www.transit.dot.gov/regulations-and-guidance/safety/fta-sponsored-training-courses">https://www.transit.dot.gov/regulations-and-guidance/safety/fta-sponsored-training-courses</a>.
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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

[[Page 25695]]

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\
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\7\ Federal Transit Administration (February 17, 2022). ``Dear
Colleague Letter: Bipartisan Infrastructure Law Changes to PTASP
Requirements.'' <a href="https://www.transit.dot.gov/safety/public-transportation-agency-safety-program/dear-colleague-letter-bipartisan-infrastructure">https://www.transit.dot.gov/safety/public-transportation-agency-safety-program/dear-colleague-letter-bipartisan-infrastructure</a>.
\8\ National Transit Database Safety and Security Reporting
Changes and Clarifications, 87 FR 42539 (July 15, 2022). <a href="https://www.federalregister.gov/documents/2022/07/15/2022-15167/national-transit-database-safety-and-security-reporting-changes-and-clarifications">https://www.federalregister.gov/documents/2022/07/15/2022-15167/national-transit-database-safety-and-security-reporting-changes-and-clarifications</a>.
\9\ Federal Transit Administration (October 2022). ``Special
Directives on Required Actions Regarding Transit Worker Assault.''
<a href="https://www.transit.dot.gov/regulations-and-guidance/safety/fta-special-directives#SDTWA">https://www.transit.dot.gov/regulations-and-guidance/safety/fta-special-directives#SDTWA</a>.
\10\ Federal Transit Administration (December 2022). ``Transit
Worker and Rider Safety Best Practices Research Project.'' <a href="https://www.transit.dot.gov/funding/grants/TWRS">https://www.transit.dot.gov/funding/grants/TWRS</a>.
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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 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\
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\11\ National Transit Database Safety and Security Reporting
Changes and Clarifications, 88 FR 11506 (February 23, 2023). <a href="https://www.federalregister.gov/documents/2023/02/23/2023-03789/national-transit-database-safety-and-security-reporting-changes-and-clarifications">https://www.federalregister.gov/documents/2023/02/23/2023-03789/national-transit-database-safety-and-security-reporting-changes-and-clarifications</a>.
\12\ Public Transportation Agency Safety Plans, 88 FR 25336
(April 26, 2023). <a href="https://www.federalregister.gov/documents/2023/04/26/2023-08777/public-transportation-agency-safety-plans">https://www.federalregister.gov/documents/2023/04/26/2023-08777/public-transportation-agency-safety-plans</a>.
\13\ National Public Transportation Safety Plan, 88 FR 34917
(May 31, 2023). <a href="https://www.federalregister.gov/documents/2023/05/31/2023-11551/national-public-transportation-safety-plan">https://www.federalregister.gov/documents/2023/05/31/2023-11551/national-public-transportation-safety-plan</a>.
\14\ General Directive 24-1: Required Actions Regarding Assaults
on Transit Workers, 88 FR 88213 (December 20, 2023). <a href="https://www.federalregister.gov/documents/2023/12/20/2023-28002/proposed-general-directive-24-1-required-actions-regarding-assaults-on-transit-workers">https://www.federalregister.gov/documents/2023/12/20/2023-28002/proposed-general-directive-24-1-required-actions-regarding-assaults-on-transit-workers</a>.
\15\ Transit Worker Hours of Service and Fatigue Risk
Management, 88 FR 74107 (October 30, 2023). <a href="https://www.federalregister.gov/documents/2023/10/30/2023-23916/transit-worker-hours-of-service-and-fatigue-risk-management">https://www.federalregister.gov/documents/2023/10/30/2023-23916/transit-worker-hours-of-service-and-fatigue-risk-management</a>.
\16\ Office of Information and Regulatory Affairs (2023).
Unified Agenda: ``Transit Worker and Public Safety.'' <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2132-AB47">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2132-AB47</a>.
\17\ Rail Transit Roadway Worker Protection, 89 FR 20605 (March
25, 2024). <a href="https://www.federalregister.gov/documents/2024/03/25/2024-06251/rail-transit-roadway-worker-protection">https://www.federalregister.gov/documents/2024/03/25/2024-06251/rail-transit-roadway-worker-protection</a>.
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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:
<bullet> Requirements for each recipient that serves an urbanized
area with a population of fewer than 200,000 (small urbanized area) to:
[cir] Develop its ASP in cooperation with frontline employee
representatives (49 U.S.C. 5329(d)(1)(B)); and
[cir] 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)).
<bullet> 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:
[cir] Establish a Safety Committee that is convened by a joint
labor-management 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:
[ssquf] 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));
[ssquf] 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));
[ssquf] Identifying and recommending risk-based 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));
[ssquf] 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
[ssquf] Identifying safety deficiencies for purposes of continuous
improvement (49 U.S.C. 5329(d)(5)(A)(iii)(III)).
[cir] 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:
[ssquf] 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
[ssquf] 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)).
[cir] Allocate not less than 0.75 percent of its section 5307 funds
to safety-related 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:

[[Page 25696]]

[ssquf] 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)).
[cir] Ensure the agency's comprehensive staff training program
includes maintenance personnel and de-escalation training (49 U.S.C.
5329(d)(1)(H)(ii)).
[cir] 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
Sec. 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 Sec. 673.19. These changes provide
additional clarity and specificity regarding Safety Committee
procedures. FTA has revised Sec. 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 Sec. 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 Sec. Sec.
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 Sec. 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 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 Sec. 673.20 as a
standalone section, and has moved the safety risk reduction program
requirements originally proposed under Sec. 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 Sec. 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 Sec. 673.25, which now addresses safety risk
reduction program requirements associated with Safety Risk Management,
and Sec. 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 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 Sec. Sec.
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, Sec. 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 Sec. 673.11(a)(7)(iv). Given that
the Accountable Executive has ultimate responsibility for carrying out
the agency's ASP pursuant to Sec. 673.5, the Accountable Executive is
responsible for carrying out any mitigations included in the ASP.
In response to comments, Sec. 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 Sec. 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

[[Page 25697]]

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 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.
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]
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Total Annualized (3% Annualized (7%
Item (undiscounted) discount) discount)
----------------------------------------------------------------------------------------------------------------
Benefits.................................................... Unquantified ............... ...............
Costs:
De-escalation training.................................. $584,925 $59,040 $59,803
Continuous improvement processes........................ $5,881,933 582,913 575,558
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Total costs......................................... $6,466,858 641,954 635,362
Net benefits........................................ Unquantified ............... ...............
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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 acknowledges those comments were received and
considered.
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\18\ Public Transportation Agency Safety Plans, 88 FR 25336
(April 26, 2023). <a href="https://www.federalregister.gov/documents/2023/04/26/2023-08777/public-transportation-agency-safety-plans">https://www.federalregister.gov/documents/2023/04/26/2023-08777/public-transportation-agency-safety-plans</a>.
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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 Sec.
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 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 non-rail 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

[[Page 25698]]

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.
---------------------------------------------------------------------------

\19\ Federal Transit Administration (April 2024). ``National
Public Transportation Safety Plan.'' <a href="https://www.transit.dot.gov/nsp">https://www.transit.dot.gov/nsp</a>.
---------------------------------------------------------------------------

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.
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 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 Sec.
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

[[Page 25699]]

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 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 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\
---------------------------------------------------------------------------

\20\ Federal Transit Administration (October 2023). ``Recent NTD
Developments--Frequently Asked Questions.'' <a href="https://www.transit.dot.gov/ntd/recent-ntd-developments-frequently-asked-questions">https://www.transit.dot.gov/ntd/recent-ntd-developments-frequently-asked-questions</a>.
\21\ Federal Transit Administration (August 2023). ``2023 NTD
Safety and Security Reporting Policy Manual.'' <a href="https://www.transit.dot.gov/ntd/2023-ntd-safety-and-security-reporting-policy-manual">https://www.transit.dot.gov/ntd/2023-ntd-safety-and-security-reporting-policy-manual</a>.
\22\ Federal Transit Administration (August 2023). ``Safety &
Security Quick Reference Guide: Rail Modes.'' <a href="https://www.transit.dot.gov/ntd/safety-security-quick-reference-guides">https://www.transit.dot.gov/ntd/safety-security-quick-reference-guides</a>.
\23\ Federal Transit Administration (August 2023). ``Safety &
Security Quick Reference Guide: Non-Rail Modes.'' <a href="https://www.transit.dot.gov/ntd/safety-security-quick-reference-guide-non-rail-modes">https://www.transit.dot.gov/ntd/safety-security-quick-reference-guide-non-rail-modes</a>.
\24\ National Transit Institute (April 2023). ``Webinar: NTD
Safety Reporting Requirements Update: Assaults on Transit Workers.''
<a href="https://www.youtube.com/watch?v=GeB3RXCl6oQ">https://www.youtube.com/watch?v=GeB3RXCl6oQ</a>.
\25\ National Transit Institute. ``National Transit Database:
Urban Safety & Security Reporting Rail Modes.'' <a href="https://www.ntionline.com/national-transit-database-urban-safety-security-rail/">https://www.ntionline.com/national-transit-database-urban-safety-security-rail/</a>.
\26\ National Transit Institute. ``National Transit Database:
Urban Safety & Security Reporting Non-Rail Modes.'' <a href="https://www.ntionline.com/national-transit-database-urban-safety-and-security-reporting-non-rail-modes/">https://www.ntionline.com/national-transit-database-urban-safety-and-security-reporting-non-rail-modes/</a>.
\27\ National Transit Institute. ``National Transit Database:
Rural NTD Reporting.'' <a href="https://www.ntionline.com/rural-ntd-reporting/">https://www.ntionline.com/rural-ntd-reporting/</a>.
---------------------------------------------------------------------------

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

[[Page 25700]]

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.
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 Sec.
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 ``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 labor-management process'' is used only
in Sec. 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 definition of ``joint labor-management process'' limits the role of
the Safety Committee. FTA notes that Sec. 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 Sec. 673.19(c)(6). FTA refers readers to section
II.F. of this preamble below for additional discussion about Safety
Committee procedures and decision-making. As such, FTA declines to
revise the definition of ``joint labor-management process.''
10. Near-Miss
Comments: Two commenters stated that FTA should not use the word
``narrowly'' in its definition of ``near-miss,'' 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 ``near-miss'' 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 near-
misses 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
collision-related near-misses in the yard.
FTA disagrees that the definition of ``near-miss'' is insufficient.
Any safety

[[Page 25701]]

event, also defined in this rule, that is narrowly avoided is
considered a ``near-miss'' 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 near-miss 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
Sec. 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.
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.
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 Sec. 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 non-rail
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.
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.''
---------------------------------------------------------------------------

\28\ Federal Highway Administration (July 2022). ``Manual on
Uniform Traffic Control Devices for Streets and Highways.'' <a href="https://mutcd.fhwa.dot.gov/pdfs/2009r1r2r3/pdf_index.htm">https://mutcd.fhwa.dot.gov/pdfs/2009r1r2r3/pdf_index.htm</a>.
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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

[[Page 25702]]

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 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
Sec. Sec. 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.
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.

[[Page 25703]]

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 ``top-down.'' 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 ``top-down'' 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 ``top-down'' from the definition,
as proposed.
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 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
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 Sec.
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 Sec. 673.5 as

[[Page 25704]]

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
Sec. 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 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 Sec. 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 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 Sec. 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 Sec. 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 Sec. 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.
---------------------------------------------------------------------------

\29\ Federal Transit Administration (February 17, 2022). ``Dear
Colleague Letter: Bipartisan Infrastructure Law Changes to PTASP
Requirements.'' <a href="https://www.transit.dot.gov/safety/public-transportation-agency-safety-program/dear-colleague-letter-bipartisan-infrastructure">https://www.transit.dot.gov/safety/public-transportation-agency-safety-program/dear-colleague-letter-bipartisan-infrastructure</a>.
---------------------------------------------------------------------------

Transit agencies that update the SPTs in their ASP must follow the
review, signature, and approval process outlined in Sec. 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

[[Page 25705]]

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.
3. Roadway Workers
Comments: An RTA commenter opposed language proposed at Sec.
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 Sec.
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 Sec.
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 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 Sec. 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 risk-based inspection program requirements
established by their SSOA. As such, FTA believes that it is
inappropriate to establish additional requirements or clarifications
specific to SSOA risk-based 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
risk-based 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 Sec. 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 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

[[Page 25706]]

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 Sec. 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 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 Sec. 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 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 labor-management 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 Sec. 673.17 dovetails
with the proposed Safety Committee provisions at Sec. 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 Sec. 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 Sec. 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

[[Page 25707]]

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, Sec. 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.

F. Section 673.19--Safety Committee

1. General
Comments: FTA received several comments about proposed Sec.
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 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
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

[[Page 25708]]

update process documented in their ASP.
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\30\ Federal Transit Administration (February 17, 2022). ``Dear
Colleague Letter: Bipartisan Infrastructure Law Changes to PTASP
Requirements.'' <a href="https://www.transit.dot.gov/safety/public-transportation-agency-safety-program/dear-colleague-letter-bipartisan-infrastructure">https://www.transit.dot.gov/safety/public-transportation-agency-safety-program/dear-colleague-letter-bipartisan-infrastructure</a>.
---------------------------------------------------------------------------

2. Size, Scale and Structure
Comments: FTA received several comments on proposed Sec.
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 Sec. 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 Sec. 673.19(a)(2), as FTA's
proposed language mirrors the statute. FTA notes that Sec. 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.
3. Membership
Comments: Several commenters remarked on the Safety Committee
membership provisions that FTA proposed in Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 673.5.
Two commenters noted that transit agencies 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 Sec. 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 Sec. 673.19(b). FTA acknowledges the comment
received regarding the challenges of asking frontline transit workers
to participate

[[Page 25709]]

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 Sec. 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 Sec. 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 language in Sec. 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 Sec.
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 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 de-escalate 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 Sec. 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 Sec. 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.

[[Page 25710]]

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 Sec. 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
Sec. 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 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 Sec. 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 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 Sec. 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 inSec. 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

[[Page 25711]]

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 Sec.
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 Sec. 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 FTA-provided 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 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 Sec. 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.
Coordination With Board of Directors and Accountable Executive
Comments: One commenter recommended that FTA amend the proposed
requirement at Sec. 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 Sec. 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

[[Page 25712]]

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 non-members may result in a power imbalance.
FTA agrees that procedures for outside participation in Safety
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 Sec. 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 Sec. 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
Sec. 673.19(d)(3), expressing that this dilutes the power of data-
decision risk management.
Response: As established by Sec. 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 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 Sec. 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.

[[Page 25713]]

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 decision-making 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
Sec. Sec. 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 Sec. 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 agrees that the Accountable Executive must
implement the safety risk reduction program mitigations included in the
ASP under Sec. 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 Sec. 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 Sec. 673.23(d)(1) to convey that the Accountable
Executive must implement the safety risk reduction program mitigations
included in the ASP under Sec. 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 Sec.
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 Sec.
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 Sec. 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 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 Sec. 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 Sec.
673.5 reflects that the Safety Committee is a joint labor-management
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 safety-
critical tasks assigned to the Safety Committee in Sec. 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
Sec. 673.19(d).
Three commenters opposed FTA's proposed language in Sec. 673.19(d)
that

[[Page 25714]]

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 Sec. 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 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 Sec.
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
Sec. 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 Sec. 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 Sec. 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
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 Sec.
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
third-party 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

[[Page 25715]]

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 Sec. 673.19(c).
However, FTA agrees with commenters that Safety Committees need an
agreed-upon decision-making process. It is therefore requiring at
Sec. Sec. 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 Sec. 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.
However, FTA also revised Sec. 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 Sec. 673.19(c)(6) to reach and record decisions and
subject to the provisions in Sec. 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
Sec. Sec. 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 Sec. 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 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 Sec. 673.19(c)(6) for
documenting how the Safety Committee will reach and record decisions
and at Sec. 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,
Sec. 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

[[Page 25716]]

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 Sec. 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 walk-through 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
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 Sec. 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 that are excluded from PTASP generally under Sec. 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 (Sec. 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 (Sec.
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 Sec. 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.

[[Page 25717]]

Accordingly, provisions regarding identifying mitigations for the
safety risk reduction program are now located in the Safety Risk
Mitigation section of the regulation at Sec. Sec. 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 Sec. Sec. 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 Sec.
673.11(a)(7). FTA believes that this is the most appropriate location
because Sec. 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
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.
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 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 three-year 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 three-year 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

[[Page 25718]]

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 three-year 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 3-year 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 Sec. 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 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 non-
zero.
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 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

[[Page 25719]]

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.
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 expressing confusion about the
requirements.
A labor organization stated that FTA's proposed language in Sec.
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
Sec. 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 Sec.
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 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 Sec. Sec. 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 Sec. 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'

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