Rule2024-23866
State Safety Oversight
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 18, 2024
Effective
January 1, 2025
Issuing agencies
Transportation DepartmentFederal Transit Administration
Abstract
The Federal Transit Administration (FTA) is publishing a final rule for State Safety Oversight (SSO). This final rule implements new requirements of the Bipartisan Infrastructure Law (enacted as the Infrastructure Investment and Jobs Act (IIJA)), removes outdated references, and simplifies notification requirements.
Full Text
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[Federal Register Volume 89, Number 202 (Friday, October 18, 2024)]
[Rules and Regulations]
[Pages 83956-83987]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23866]
[[Page 83955]]
Vol. 89
Friday,
No. 202
October 18, 2024
Part II
Department of Transportation
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Federal Transit Administration
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49 CFR Part 674
State Safety Oversight; Final Rule
Federal Register / Vol. 89 , No. 202 / Friday, October 18, 2024 /
Rules and Regulations
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 674
[Docket No. FTA-2023-0008]
RIN 2132-AB42
State Safety Oversight
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 State Safety Oversight (SSO). This final rule implements new
requirements of the Bipartisan Infrastructure Law (enacted as the
Infrastructure Investment and Jobs Act (IIJA)), removes outdated
references, and simplifies notification requirements.
DATES: The effective date of this rule is January 1, 2025.
FOR FURTHER INFORMATION CONTACT: For program matters, contact Loretta
Bomgardner, Office of Transit Safety and Oversight, FTA, telephone
(202) 577-5896 or <a href="/cdn-cgi/l/email-protection#97fbf8e5f2e3e3f6b9f5f8faf0f6e5f3f9f2e5d7f3f8e3b9f0f8e1"><span class="__cf_email__" data-cfemail="82eeedf0e7f6f6e3ace0edefe5e3f0e6ece7f0c2e6edf6ace5edf4">[email protected]</span></a>. For legal matters,
contact Richard Wong, Office of the Chief Counsel, telephone (202) 366-
4011 or <a href="/cdn-cgi/l/email-protection#53213a303b3221377d243c3d3413373c277d343c25"><span class="__cf_email__" data-cfemail="abd9c2c8c3cad9cf85dcc4c5ccebcfc4df85ccc4dd">[email protected]</span></a>. Office hours are from 8:30 a.m. to 5:00
p.m., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of Regulatory Action
B. Statutory Authority
C. Summary of Major Provisions
D. Benefits and Costs (Table)
II. Notice of Proposed Rulemaking and Response to Comments
A. Section 674.5--Policy
B. Section 674.7--Definitions
C. Section 674.11--State Safety Oversight Program
D. Section 674.17--Use of Federal Financial Assistance
E. Section 674.19--Certification of a State Safety Oversight
Program
F. Section 674.21--Withholding of Federal Financial Assistance
for Noncompliance
G. Section 674.23--Confidentiality of Information
H. Section 674.25--Role of the State Safety Oversight Agency
I. Section 674.27--State Safety Oversight Program Standards
J. Section 674.29--Public Transportation Agency Safety Plans:
General Requirements
K. Section 674.31--Triennial Audits: General Requirements
L. Section 674.33--Safety Event Notifications
M. Section 674.35--Investigations
N. Section 674.37--Corrective Action Plans
O. Section 674.39--State Safety Oversight Agency Annual
Reporting to FTA
P. Section 674.41--Conflicts of Interest
Q. Regulatory Burden
R. Other Safety Topics
III. Section-by-Section Analysis
IV. Regulatory Analyses and Notices
I. Executive Summary
A. Purpose of Regulatory Action
This final rule updates the existing regulations for state safety
oversight of rail fixed guideway public transportation systems. In the
Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L.
112-141, July 6, 2012), Congress directed FTA to establish a
comprehensive public transportation safety program, one element of
which is the State Safety Oversight (SSO) Program. (See 49 U.S.C.
5329). Section 30012 of the Bipartisan Infrastructure Law (BIL),
enacted as the Infrastructure Investment and Jobs Act (IIJA) (Pub. L.
117-58, November 15, 2021), amended 49 U.S.C. 5329 and established new
requirements for FTA's Public Transportation Safety Program.
Consequently, FTA is revising 49 CFR part 674 to address requirements
related to the BIL, remove requirements related to the initial
establishment of this part, and clarify requirements of the existing
part.
B. Statutory Authority
Section 5329 of title 49, United States Code, includes several
provisions that require FTA to establish a comprehensive public
transportation safety program, the elements of which include a National
Public Transportation Safety Plan; a training and certification program
for Federal, state, and local transportation agency employees with
safety responsibilities; Public Transportation Agency Safety Plans; and
a strengthened State Safety Oversight Program.
C. Summary of Major Provisions
This final rule makes the following changes to strengthen the
existing SSO program:
<bullet> Updates terminology to reflect current use across
programs.
<bullet> Clarifies existing requirements consistent with FTA
expectations.
<bullet> Removes language relating to the period of transition from
49 CFR part 659, FTA's previous SSO regulation, to 49 CFR part 674, the
current SSO regulation.
<bullet> Addresses BIL requirements.
D. Benefits and Costs
The final rule requires additional oversight of safety-related
activities of rail transit agencies (RTAs) by state safety oversight
agencies (SSOAs). The rule also has additional costs for SSOAs and RTAs
to comply with the requirements.
Table 1 summarizes the economic effects of the rule over the first
ten years of the rule (2025 to 2034) in 2022 dollars. The benefits of
the increased oversight are unknown and unquantified. On an annualized
basis, the rule will have costs of $11.0 million at a 7 percent
discount rate (discounted to 2024), $10.9 million at 3 percent, and
$10.9 million at 2 percent.
Table 1--Summary of Economic Effects, 2025-2034
[$2022, discounted to 2024]
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Total
Item (undiscounted) Annualized (7%) Annualized (3%) Annualized (2%)
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Benefits............................ Unquantified ................. ................. .................
Costs:
SSOA documentation of $118,140 $16,820 $13,446 $12,894
enforcement authority..........
SSOA oversight.................. 80,338,058 8,093,373 8,058,697 8,050,279
SSOA safety event tracking...... 183,879 18,388 18,388 18,388
SSOA investigations............. 7,355,168 735,517 735,517 735,517
SSOA annual reporting to FTA.... 609,755 60,975 60,975 60,975
RTA investigations and reporting 20,456,560 2,045,656 2,045,656 2,045,656
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Total costs................. 109,061,560 10,970,730 10,932,680 10,923,710
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[[Page 83957]]
Net benefits........................ Unquantified ................. ................. .................
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Note: Totals may not sum due to rounding.
II. Notice of Proposed Rulemaking and Response to Comments
FTA published the State Safety Oversight NPRM on November 15, 2023
(88 FR 78269), with the public comment period closing on February 15,
2024. During this time, FTA received 27 unique and substantive comment
submissions to the rulemaking docket. Commenters included SSOAs, RTAs,
labor organizations, trade associations, and individuals. FTA has
considered these comments and addresses them in the corresponding
sections below. Some comments expressed support for the NPRM without
advocating for specific changes, and FTA acknowledges those comments
were received and considered.
FTA reviewed all relevant comments and took them into consideration
when developing the final rule. Below, the NPRM comments and responses
are subdivided by their corresponding sections of the proposed rule and
subject matter.
A. Section 674.5--Policy
Comments: FTA received comments from two SSOA commenters regarding
Sec. 674.5. One commenter questioned how FTA defines the terms
``resources,'' ``qualified personnel,'' and ``complexity'' and asked
FTA to clearly define its expectations for SSOAs. Another commenter
asked why FTA removed the first sentence in 674.5(b) related to funding
of SSOAs.
FTA Response: FTA notes that these terms originate in statute and
defining the terms is not necessary to carry out the statute, as
evidenced by their use in the rule since 2016. As with previous
regulatory action, FTA declines to establish formal definitions for
these terms to avoid conflicts in instances where associated statutes
or regulations are revised. FTA notes that SSOAs have differing levels
of State-based authority and resources to oversee the safety of the
rail fixed guideway public transportation systems in their State.
Further, FTA notes that the number, size, and complexity of rail fixed
guideway public transportation systems that SSOAs oversee vary across
States. The language in Sec. 674.5(a) ensures the SSO program is not a
``one size fits all'' program and instead provides States the
flexibility to establish an SSOA sized and resourced to meet the
State's oversight needs. Ultimately, as defined at Sec. 674.19, the
FTA Administrator may issue or deny certification of an SSOA based on
an assessment of whether the SSOA has the authority, resources, and
expertise to oversee the number, size, and complexity of the rail fixed
guideway public transportation systems that operate within the State.
In response to the comment regarding the proposed removal of the
first sentence in Sec. 674.5(b), FTA removed the first sentence in
subsection (b) because the availability of funding is addressed in
Sec. 674.17(a) and is not necessary to repeat here.
B. Section 674.7--Definitions
FTA received submissions from 14 commenters that included specific
comments related to Sec. 674.7 and proposed definitions.
1. Accountable Executive
Comments: Two SSOA commenters suggested FTA revise the definition
of Accountable Executive to include language that specifies a rail
transit agency's Agency Safety Plan (ASP) is ``designed and approved by
the transit agency's board [of directors].''
FTA Response: FTA declines to revise the definition of
``Accountable Executive'' to describe the role of a transit agency's
board of directors or equivalent entity. FTA notes that it may be
inaccurate to state that a transit agency's board of directors designs
the transit agency's ASP.
2. Collision
Comments: Three SSOA commenters and one RTA commenter submitted
comments related to FTA's proposed definition of ``collision.'' The RTA
commenter recommended definitional alignment with the NTD program. One
SSOA suggested that without additional clarification regarding the
terms ``impact'' and ``object'' used in the definition of
``collision,'' FTA would see a significant increase in the number of
events that would require reporting, resulting in an increased burden
for transit agencies. Both SSOA commenters recommended that FTA replace
the word ``impact'' with ``contact,'' asserting that ``contact'' simply
means touching, while ``impact'' implies a certain level of force,
which could be confusing to SSOAs and RTAs. One SSOA commenter
requested that FTA clarify whether this definition means that some
collisions do not require two-hour notification.
FTA Response: FTA appreciates the recommendation that definitions
align with the NTD and notes that FTA has coordinated terminology to
ensure consistency across programs. As for the use of the terms
``impact'' and ``object,'' FTA notes that for consistency, the
definition of ``collision'' in the final rule uses the same terms as
the NTD, including both ``impact'' and ``object.'' FTA disagrees that
the term ``impact'' is confusing to RTAs and SSOAs and notes the NTD
has used this term in its definition of ``collision'' for many years.
FTA also disagrees that interpretations of the definition will result
in an increase in collision events that require notification. FTA notes
that all notification criteria are described at Sec. 674.33 and
include thresholds for collisions, such as injuries, fatalities, and
disabling damage, that define the set of collisions that require two-
hour notification. Finally, FTA confirms that not all collisions
require two-hour notification. Two-hour notifications are required for
any safety event meeting the notification criteria at Sec. 674.33,
including any collision between two rail transit vehicles and any
collision resulting in one or more injuries, a fatality, or disabling
damage to a rail transit vehicle.
3. Corrective Action Plan
Comments: Two SSOA commenters recommended FTA revise the proposed
definition of ``corrective action plan'' and add a definition of
``safety risk mitigation'' to help distinguish between corrective
action plans and safety risk mitigations. The commenters pointed out
the relationship between corrective action plans and safety risk
mitigations and noted that corrective action plans address compliance
with requirements and that safety risk mitigations address actual
performance to ensure an RTA meets the safety intent behind the
corrective action plan requirements.
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FTA Response: The proposed rule included a definition of ``safety
risk mitigation'' and FTA retains that definition in the final rule.
FTA agrees with the suggestion that FTA revise the definition of
corrective action plan to support the distinction between safety risk
mitigations and corrective action plans more clearly. FTA generally
agrees with the commenter's description that corrective action plans
focus more on resolving issues related to compliance, whereas safety
risk mitigations result from safety risk assessments and focus on
addressing safety risk by reducing the likelihood and/or severity of a
hazard's potential consequence. FTA has revised the definition of
corrective action plan in this final rule to reflect this distinction
by removing the phrase ``minimize, control, correct, or eliminate risks
and hazards'' and replacing it with ``address an identified deficiency
or safety concern.'' This change removes language more closely related
to safety risk mitigations from the definition of corrective action
plan and adds language that more appropriately describes corrective
action plans.
4. Derailment
Comments: Two SSOA commenters suggested clarifications to the
definition of ``derailment'' and use of the term ``event'' within the
definition. One of the SSOA commenters suggested the proposed
definition was insufficient and there was a risk of events not being
reported that should be (e.g., split switch, run-throughs, etc.). The
commenter offered an alternative definition that explicitly identified
and included split switches, switch run-throughs, wheel lifts, wheel
climbs, flange running, and web running. One transit agency requested
that the definition of ``derailment'' apply the NTD exclusion for
events that occur during the engineering or construction phases of a
new rail transit system or the extension of an existing rail transit
system unless they involve transit-related activities such as
operations, testing, simulated service or pre-revenue service, or a
transit-related maintenance activity.
FTA Response: On the use of the word ``event'' within the
definition of ``derailment,'' FTA agrees that, given removal of the
definition of ``event'' from the rule, use of the term ``safety event''
is appropriate, and has made that change for the definition of
``derailment'' for the purposes of the two-hour notification
requirements in Sec. 674.33. FTA appreciates the commenter's request
for clarification regarding the NTD program's exclusion of events that
occur during the engineering or construction phases of a new rail
transit system or the extension of an existing rail transit system,
unless they involve transit-related activities such as operations,
testing, simulated service or pre-revenue service, or a transit-related
maintenance activity. FTA confirms that the SSO program applies this
same exclusion for purposes of safety event notification and
investigation criteria and notes that FTA has added language at
subsection Sec. 674.25(c) that establishes, for the purposes of
Sec. Sec. 674.33 and 674.35, notification criteria are limited to
safety events that involve transit-related activities such as
operations, testing, simulated service or pre-revenue service, or a
transit-related maintenance activity.
5. Designated Personnel
Comments: Two SSOA commenters suggested non-substantive edits to
the definition of ``designated personnel'' to match the definition in
the Public Transportation Safety Certification Training Program
(PTSCTP) NPRM.
FTA Response: FTA has ensured the ``designated personnel''
definition at Sec. 674.7 matches the definition from part 672.
6. Disabling Damage
Comments: FTA received comments from two RTA commenters and two
SSOA commenters regarding the new term ``disabling damaged'' used to
support safety event notification criteria. One RTA commenter expressed
support for the new term and the fact that it is limited to damage that
physically prevents a rail transit vehicle or train from operating
under its own power. One RTA commenter suggested FTA modify the
proposed definition to specify the physical prevention of movement. Two
SSOA commenters suggested that the definition include additional
clarification to exclude mechanical failures or other malfunctions that
may impact operations. One SSOA commenter suggested that FTA modify the
definition to replace ``preventing the vehicle from operating under its
own power'' to ``towed from the scene.''
FTA Response: After consideration of the comments, FTA declines to
revise the definition. FTA notes the term ``disabling damage'' is
referring to physical damage preventing operation. For some collision
examples like mirror strikes, a rail transit vehicle could still
operate on its own power, and FTA does not consider this disabling
damage. FTA notes that even in such an example, local policy may
require taking the rail transit vehicle out of service, but this
decision could vary agency to agency. It is disabling damage only if
the damage itself prevents the vehicle from operating under its own
power. Further, modifying the definition to replace ``preventing the
vehicle from operating under its own power'' with ``towed from the
scene'' could include certain collisions that do not result in damage
that physically prevents rail transit vehicle movement. FTA confirms
that disabling damage includes damage from a collision that requires
towing for the rail transit vehicle.
7. Evacuation for Life Safety Reasons
Comments: FTA received comments from two SSOAs and two RTAs about
the definition of ``evacuation for life safety reasons.'' One SSOA
suggested the definition should not include all evacuations of
passengers into the rail right of way, including for events such as
mechanical failures, because this would ``skew the data.'' Another SSOA
requested clarification regarding self-evacuations when the RTA may not
be aware of certain self-evacuations and the circumstances that
prompted them. One RTA commenter recommended FTA ensure this definition
aligns with the definition used by the NTD, specifically relating to
passenger self-evacuations into the right of way. Finally, one RTA
commenter requested FTA state these evacuations are not due to
preceding events, such as collisions, as this could distort data.
FTA Response: Existing SSO program and NTD reporting policy support
retaining in the definition the concept that any evacuation into the
rail right of way is an evacuation for life safety reasons, and thus
FTA does not believe the definition will skew existing data sets or
trending. FTA appreciates the opportunity to clarify self-evacuations
and notes that RTAs cannot notify SSOAs and FTA of events of which they
are not aware. The inclusion of self-evacuations ensures that
evacuations resulting from hazards still trigger notification, even if
the evacuation was not directed by the RTA. FTA agrees with the
recommendation for alignment with the NTD definition of ``evacuation
for life safety reasons'' and the treatment of self-evacuations and
confirms the definition aligns with the NTD definition and treatment of
self-evacuations. FTA disagrees with the suggestion that evacuations
for life safety reasons should exclude those evacuations that result
from preceding events, as evacuations commonly follow preceding events.
An evacuation for life safety reasons is one of the notification
criteria described in Sec. 674.33. Further,
[[Page 83959]]
FTA notes that a single safety event may meet multiple notification
criteria. For example, a single event may involve a collision,
injuries, fatalities, an evacuation for life safety reasons, and
disabling damage. This is still considered a single safety event that
requires notification because it meets at least one of the safety event
notification criteria described in Sec. 674.33.
8. Fatality
Comments: FTA received comments from three SSOAs and one RTA
regarding the definition of ``fatality.'' Two SSOAs expressed concern
over the 30-day window for confirmation of death, suggesting the word
``confirmed'' should be replaced with the word ``determined'' because
confirmation implies that an answer exists, whereas determination
implies that follow-up is required. The two SSOAs also suggested that
the 30-day window requires SSOAs and RTAs to solicit information
protected under the Health Insurance Portability and Accountability Act
of 1996 (HIPAA). One SSOA commenter and one RTA commenter requested
clarification on the inclusion of homicides in the definition of
``fatality,'' noting that homicides are considered security events and
should be excluded from notification and investigation requirements.
FTA Response: FTA declines to revise the definition of ``fatality''
as suggested. FTA confirms that the definition of fatality used by both
the NTD and part 674 are consistent. Further, FTA notes that it has not
substantively changed the definition of ``fatality'' that has been used
by both the SSO and NTD programs for many years and is not aware of any
situation where the current definition has prevented an SSOA or RTA
from complying with SSO program notification requirements. Further, FTA
notes that part 674 does not establish any requirement to solicit
HIPAA-protected information and reiterates that RTAs are not required
to notify SSOAs and FTA of events of which they are not aware. However,
if an RTA becomes aware that a safety event resulted in a fatality as
defined at Sec. 674.7, the RTA is required to notify the SSOA and FTA
within two hours of being made aware of the fatality. FTA confirms the
notification requirements of Sec. 674.33 exclude criminal actions such
as homicides. These events are excluded from the safety events
requiring SSOA investigation. Accordingly, the final rule does not
require RTAs to notify SSOAs and FTA of homicides. FTA notes that the
final rule does not preclude an SSOA from establishing notification
requirements in addition to those established at Sec. 674.33. Finally,
given removal of the definition of ``event'' from the rule, FTA has
replaced the term ``event'' with ``safety event'' in the definition of
``fatality'' for purposes of the two-hour notification requirements in
Sec. 674.33.
9. Hazard
Comments: FTA received comments from two SSOAs and one RTA
regarding the definition of ``hazard.'' The RTA commenter recommended
changing the term ``hazard'' to ``safety hazard'' to parallel the
change from ``risk'' to ``safety risk.'' The two SSOA commenters
recommended adding the phrase ``of a public transportation system'' to
match the definition published in 49 CFR part 673.
FTA Response: FTA declines to change the term ``hazard'' to
``safety hazard'' and instead chooses to maintain definitional
consistency with 49 CFR part 673. FTA agrees with the commenters who
recommended FTA revise the definition of ``hazard'' proposed in the
NPRM to match the definition of ``hazard'' published in the final 49
CFR part 673. FTA has included the phrase ``of a public transportation
system'' in the definition of ``hazard'' at Sec. 674.7 to mirror the
definition of ``hazard'' published in 49 CFR 673.5.
10. Injury
Comments: FTA received comments from three SSOAs, two RTAs, and one
industry association regarding the definition of ``injury.'' One RTA
expressed support for the definition of ``injury,'' noting that it will
help simplify notifications. One RTA commenter requested that FTA
clarify why the definition uses the words ``medical attention'' instead
of ``medical transport'' and asked FTA to define the timeframe for
``immediate'' medical attention. Two SSOAs and an industry association
asked if ``event'' should be changed to ``safety event.'' One SSOA
requested an explicit definitional exclusion of injuries resulting from
security events. Another SSOA suggested that FTA move toward a
methodology like the one created by the Association of Transportation
Safety Information Professionals and an approved American National
Standard via the Manual on Classification of Motor Vehicle Traffic
Crashes to help promote reporting uniformity. Additionally, the
commenter suggested that FTA replace ``requires'' with ``results in''
to ensure consistent reporting.
FTA Response: FTA appreciates the support received regarding the
definition of ``injury'' and agrees that it provides a simpler
criterion to support safety event notifications. FTA confirms that the
term ``immediate medical attention'' as used in the definition of
``injury'' serves to exclude first aid received onsite and to include
physical harm that results in medical transport from the safety event
scene. This excludes medical attention sought by an individual at a
later time. The definition of ``injury'' used in this rulemaking is
consistent with the definition of ``injury'' in the NTD. Given that FTA
removed the definition of ``event'' and instead uses ``safety event,''
FTA has made this edit in the final rule, but otherwise retains the
definition in the NPRM. With respect to the requested clarification
regarding the definition's application to security events versus safety
events. FTA declines to revise the definition of ``injury'' to exclude
those resulting from security events. FTA notes, as stated in other
comment responses, that criminal actions such as homicides and assaults
are excluded from RTA notification requirements and SSOA investigation
requirements. FTA believes it is appropriate to preserve definitional
alignment with the NTD for the term ``injury'' and to establish
security event exclusions in the requirements for RTA notification and
SSOA investigation. FTA notes that the final rule does not preclude an
SSOA from establishing notification requirements in addition to those
established at Sec. 674.33.
FTA appreciates the recommendations regarding crash data
classifications and will consider these methodologies when evaluating
data management changes in the future. Finally, FTA appreciates the
comments suggesting minor changes to the injury definition, including
replacing ``requires'' with ``results in'' but declines to revise the
definition, to ensure consistency with the other FTA programs.
Finally, given removal of the definition of ``event'' from the
rule, FTA has replaced the term ``event'' with ``safety event'' in the
definition of ``injury'' for purposes of the two-hour notification
requirements in Sec. 674.33.
11. Inspection
Comments: FTA received comments from three SSOAs and one RTA
regarding the definition of ``inspection.'' One SSOA expressed concern
that the definition of ``inspection'' did not include personnel. The
RTA and two SSOAs requested clarification of what is meant by
``physical observation,'' with two commenters noting inspections may
include non-invasive inspection methods (ultrasonic, leak tests, video
[[Page 83960]]
review, other inspection methods, etc.) that may be conducted via other
means that do not require the physical onsite presence of the person
conducting the inspection.
FTA Response: The definition of ``inspection'' does not include
personnel in the list of items observed during an inspection. FTA
agrees with this commenter and has added the term ``personnel'' within
the definition of ``inspection,'' which would include the inspection of
training records and the observation of an RTA's designated personnel.
FTA appreciates the request for clarification on the use of ``physical
observation'' in the definition of ``inspection'' and notes this term
is intended to distinguish an inspection, which would involve
observation of physical system elements, from other types of activities
that do not rely on physical observations, such as a document review.
Physical observation, therefore, may include virtual observation or
other observation of system elements.
12. Investigation
Comments: An SSOA asserted the proposed definition of
``investigation'' is too limited and conflicts with the use of the term
in Sec. 674.25(e), specifically the investigation of allegations of
noncompliance with an RTA's ASP.
FTA Response: FTA first notes the definition is the same as the
2016 definition, except FTA has replaced ``accident, incident, or
hazard'' with ``safety event.'' Further, Sec. 674.25(e) is the same as
Sec. 674.25(d) in the 2016 rule. Thus, FTA disagrees the purpose is
too narrow or that the definition would not encompass investigations of
noncompliance required by Sec. 674.25(e). FTA notes that hazards may
include procedural noncompliance, which are within the purpose of an
investigation, so FTA declines to amend the definition.
13. Person
Comments: Two SSOAs requested that FTA define the terms
``volunteer,'' ``official worker,'' and ``associated infrastructure''
used in the definition of ``person.''
FTA Response: FTA does not believe it is necessary to define
commonly understood terms such as ``volunteer,'' ``official worker,''
and ``associated infrastructure'' to ensure understanding of the rule.
14. Potential Consequence
Comments: Two SSOAs asserted the definition of ``potential
consequence'' was confusing and recommended that FTA restate the
definition.
FTA Response: FTA disagrees that the definition requires revision.
Further, FTA notes that the definition of ``potential consequence'' at
Sec. 674.7 mirrors the definition of ``potential consequence''
published in 49 CFR 673.5.
15. Rail Fixed Guideway Public Transportation System
Comments: FTA received comments from one RTA, one SSOA, and one
industry association about the definition of ``rail fixed guideway
public transportation system.'' The RTA commented that including the
phrase ``or any such system in engineering or construction'' may cause
conflict with State occupational safety regulators. The industry
association and SSOA recommended that FTA edit the definition to
explicitly refer to streetcar systems.
FTA Response: The phrase ``or any such system in engineering or
construction'' has been a part of the definition since the original
part 674 was published in 2016, and FTA is not aware of any conflict
this definition has for the purposes of State safety regulators. As for
the inclusion of streetcar in the definition, the list of transit modes
in the definition is not exhaustive and includes the text, ``. . .
include but are not limited to . . .'' Further, FTA notes this
definition mirrors FTA's definition of ``rail fixed guideway public
transportation system'' published in 49 CFR 673.5.
16. Safety Committee
Comments: FTA received comments from two SSOAs, one RTA, and one
industry association related to the definition of ``safety committee.''
The RTA commenter suggested that FTA provide more clarity in the
definition because their agency includes different safety committees.
The two SSOAs and industry association suggested that FTA use the term
``Joint Labor-Management Committee'' instead of ``Safety Committee'' to
provide additional specificity.
FTA Response: FTA understands RTAs may have a variety of safety-
related committees. FTA notes that the term ``safety committee'' is not
used in this final rule and has been removed from Sec. 674.7.
17. Safety Event
Comments: FTA received comments from four RTAs, four SSOAs, and two
industry associations related to the proposed definition of ``safety
event.'' Several commenters, including one RTA and the two industry
associations, commented on FTA's simplification of event categorization
and the elimination of the terms ``accident,'' ``incident,'' and
``occurrence,'' which were used by FTA in the previous rule to
establish criteria for event notification and investigation. Two SSOAs
and one industry association expressed support for the simplification
of existing terminology related to safety events. The two industry
associations and one RTA commenter noted that the previous event tiers
can be useful for analysis and trending purposes. Two RTAs and an
industry association commented that FTA should not remove the three
event subcategories from the rule and asserted that agencies are
accustomed to using these terms to support existing SSOA notification
activities and that the proposed definition of ``safety event'' is
insufficient to determine which events require notification to FTA and
the SSOA. One SSOA recommended that FTA retain the definition of the
word ``incident'' because the word is used in 49 U.S.C. 5329.
One RTA requested additional clarity on whether the definition was
intended to be limited to events related to or affecting transit
operations. One SSOA commented that the use of the term ``damage to the
environment'' would result in the need for additional SSOA personnel
with very specific expertise. Two RTAs and one industry association
commented that FTA should ensure the definitions in part 674 align with
NTD definitions to reduce confusion and to avoid the underreporting of
events.
One RTA and one SSOA commented on the use of the term
``unexpected'' in the ``safety event'' definition. The RTA suggested
replacing the term ``unexpected'' with ``unintentional.'' The SSOA
requested clarification on FTA's use of the phrases ``unexpected
outcome'' and ``general criminal action'' and questioned whether it was
the responsibility of the RTA to determine intent when applying this
definition. One SSOA commented that FTA's focus should be on the
reduction of safety events that can be realistically prevented by an
RTA and asserted FTA should not use data that includes safety events
that could not realistically be prevented by an RTA as the sole
determination of the safety of an RTA or the effectiveness of an SSOA.
FTA Response: FTA agrees with the commenters that noted safety
event stratification can be useful to support safety performance
analysis and encourages RTAs and SSOAs to conduct data analysis to
support safety performance monitoring and safety oversight activities
as necessary but notes the final rule does not establish
[[Page 83961]]
any requirement that necessitates the definition of additional safety
event tiers. As to the sufficiency of the ``safety event'' definition
to define events requiring notification, FTA notes the definition of
``safety event'' in Sec. 674.7 does not establish criteria for SSOA
and FTA two-hour notifications or SSOA investigations. Instead, FTA
describes safety event notification criteria at Sec. 674.33. FTA does
not believe the statutory usage of the term ``incident'' warrants a
severity-based stratification of safety events, nor does it require FTA
to define the term in part 674.
FTA confirms that safety events generally are related to or affect
operations. Further, FTA notes that neither the definition of safety
event nor the notification criteria at Sec. 674.33 would necessitate
SSOA staff to obtain specialized skills related to assessing
environmental damage. FTA has coordinated terminology to ensure
consistency across programs.
FTA considered the suggestion to replace the word ``unexpected''
with ``unintentional,'' and declines to make the suggested revision.
The word ``unexpected'' is used to distinguish planned outcomes from
unexpected outcomes. FTA notes the definition in Sec. 674.7 mirrors
the definition of ``safety event'' published in 49 CFR part 673. FTA
confirms the exclusion of criminal actions such as homicides and
assaults from the two-hour notification requirements in Sec. 674.33
and notes that the final rule does not preclude an SSOA from
establishing notification requirements in addition to those established
at Sec. 674.33. FTA confirms the RTA is responsible for making this
determination as well as determinations regarding all notification
criteria established at Sec. 674.33. FTA agrees the determination of
the effectiveness of an RTA or an SSOA should not be made solely on the
use of data related to safety events that could not ``realistically be
prevented by an RTA.''
18. Unintended Train Movement
Comments: FTA received comments from six commenters regarding the
proposed definition of ``unintended train movement,'' including three
SSOAs, two RTAs, and one industry association. One RTA recommended that
FTA align this definition with the NTD definition of ``Runaway Train.''
Two SSOAs, one RTA, and one industry association recommended that FTA
replace the word ``driver'' in the definition with the word
``operator,'' noting that the definition excludes non-revenue vehicles,
so the term ``operator'' would be more appropriate. One SSOA
recommended that FTA not exclude non-revenue vehicles from the
definition. One RTA asked for clarification on whether a runaway train
would still meet the two-hour notification criteria. Two SSOAs
requested clarification on the application of unintended train movement
to the automated guideway mode.
FTA Response: FTA declines to change ``driver'' to ``operator'' or
to broaden the definition to include non-revenue vehicles as the
definition is consistent with the 2024 NTD Safety & Security Policy
Manual definition of runaway train. FTA confirms that under this final
rule, the term ``runaway train'' has effectively been replaced by the
term ``unintended train movement.'' This means that an event involving
a runaway train according to past terminology would now be said to
involve an unintended train movement and would trigger the two-hour
notification requirements at Sec. 674.33. Further, the definition of
``unintended train movement'' applies to automated guideway systems
when a revenue vehicle of the automated guideway system experiences
uncontrolled movement and is no longer under the control of the
automated control system.
19. Additional Comments
Comments: In addition to comments related to specific definitions,
described above, FTA received general comments related to definitions.
Several comments were related to part 672, including requests for
additional definitions or text in part 672. Other commenters asked
whether definitions amended by this rulemaking would be amended in the
NTD. Those comments are outside the scope of this rulemaking and are
not addressed. Commenters generally recommended that definitions align
with the NTD and other safety rulemakings and FTA has aligned
definitions where needed.
Some commenters requested that additional terms be defined,
including ``project,'' ``State Safety Oversight Program,'' and
``audit.'' FTA declines to define ``project'' as it is a commonly
understood term. FTA believes it is unnecessary to add a definition for
``State Safety Oversight Program'' and notes the final rule describes
the scope of and requirements for a State Safety Oversight program,
including the minimum expectations for a State Safety Oversight
program. Similarly, the term ``audit'' does not need to be defined as
Sec. 674.31 describes requirements for SSOA triennial audits of rail
transit agencies.
C. Section 674.11--State Safety Oversight Program
Comments: FTA received comments from two SSOAs related to Sec.
674.11. One commenter asked FTA to clarify in this section that only
rail fixed guideway public transit systems that receive Federal funding
must have an SSOP. Both commenters asked for clarification regarding
whether FTA can evaluate an SSOA's staffing level after FTA has issued
an initial certification. The commenters also requested that FTA define
its process and criteria for auditing an SSOA. One SSOA commenter
requested clarification on FTA SSOA audits, including State Management
Reviews and the FTA SSO Audit Program, asking what the difference is
between these audits/reviews and what the specific requirements are
that must be met for compliance. Further, the SSOA noted that State
leadership, not the SSOA, should be FTA's point of contact because the
SSOA does not have the authority to change State law.
FTA Response: Section 674.3 describes the entities to which this
rule applies, and FTA declines to restate part 674 applicability
criteria within Sec. 674.11. With respect to SSOA staffing levels, FTA
certified the compliance of every SSOA in 2018. FTA notes that 49
U.S.C. 5329(e)(9) requires FTA to continually evaluate an SSOA's
implementation of its State Safety Oversight program, which is not
limited to staffing levels, but how effectively those staff resources
are used. The NTSB, through their investigations, has also identified
SSOA staffing levels as a potential concern. Therefore, FTA will
continue to conduct audits to confirm SSOAs are staffed at appropriate
levels. If FTA identifies a pattern of SSOA noncompliance, it will
consider the impact of SSOA resourcing on the agency's noncompliant
status.
The rule does not define FTA audit procedures for the SSO program
or other programs identified by the commenter, such as State Management
Reviews. FTA believes it is not practicable to publish criteria that
would govern the audit or evaluation process, given the diversity of
the 31 SSOAs currently under the program, and the number, size, and
complexity of the fixed guideway systems under their oversight. FTA
notes that FTA SSO program audits are performed to confirm compliance
with 49 CFR part 674, and each SSOA is evaluated on a case-by-case
basis. Finally, FTA appreciates the comment received regarding FTA SSO
audit points of contact and will consider this
[[Page 83962]]
recommendation during future SSO audit program updates.
D. Section 674.17--Use of Federal Financial Assistance
Comments: FTA received comments from three SSOAs, three
individuals, and one industry association regarding the use of Federal
financial assistance. Three individuals recommended FTA establish
additional requirements that limit the amount of Federal financial
assistance SSOAs can use to procure contractor support and encouraged
strengthening SSOA internal capabilities. Two of these commenters
suggested that FTA require that no more than 10% of annual SSO grant
funding should be used for contractor support. The third commenter
suggested FTA require that no more than 15% be used for contactor
support. Four commenters, including two SSOAs, one industry
association, and one individual commented on the revised, broader
reference to 49 U.S.C. 5329 generally instead of the specific reference
to section 5329(e)(4) and sought clarification on whether this change
means that SSO funds are now eligible for States to expend on PTASP-
related activities that were previously prohibited, such as drafting
ASPs for small public transportation providers. One SSOA recommended
that FTA adjust the Federal share of 80% to 85% to help SSOAs implement
SSO programs at a faster rate. Finally, one SSOA recommended that FTA's
apportionment for 49 U.S.C. 5329 take into consideration the number,
size, and complexity of the rail fixed guideway public transportation
systems in the State to ensure adequate funding is available to the
State to best meet the Federal requirements.
FTA Response: FTA does not have the authority to place restrictions
on the percentage of SSOA grant funds that can be used for contractor
support and FTA encourages the professional development of internal
SSOA staff. FTA confirms the reference to 49 U.S.C. 5329 is no longer
limited to subsection (e) as the Bipartisan Infrastructure Law amended
section 5329 and established additional SSOA-related requirements at 49
U.S.C. 5329(k). The revised reference incorporates the requirements at
both 49 U.S.C. 5329(e) and (k), and ensures the rule remains valid even
if Congress further amends the law. This change does not mean that SSO
grant funds are now eligible for States to expend on PTASP-related
activities that were previously, and remain, prohibited (e.g., drafting
ASPs for small public transportation agencies). FTA does not have the
authority to increase the Federal share for SSOA grants, as that is
established by statute (49 U.S.C. 5329(e)(6)(C)). Finally, the
apportionment formula in 49 U.S.C. 5329(e)(6)(B) specifically takes
into consideration the number, size, and complexity of the rail fixed
guideway public transportation systems in the State to ensure adequate
funding is available to the State to best meet the Federal
requirements. FTA published an explanation of the formula and basis of
calculation in a March 10, 2014, Federal Register Notice (79 FR 13380).
E. Section 674.19--Certification of a State Safety Oversight Program
FTA received comments from four commenters regarding certification
of a State Safety Oversight program, including three SSOAs and one
industry association.
1. Section 674.19(a)--Administrator's Determination
Comments: One SSOA commenter asked for clarification regarding
FTA's National Public Transportation Safety Plan (National Safety
Plan). Specifically, the commenter asked if the National Safety Plan
established a ceiling for requirements that an SSOA can establish. The
commenter expressed concerns over potential situations where
information in the National Safety Plan conflicts with a State's SSO
program. The commenter requested clarification on what elements within
the SSO program and an RTA's ASP require consistency with the National
Safety Plan. Further, the commenter asked if a State's SSO program
would require recertification in light of the updates to the National
Safety Plan. Finally, the commenter asked about any timelines that FTA
has defined related to updating program documentation to address the
updated NSP. The SSOA also asked for clarification on certification in
relation to the RTA development process and at which phase of RTA
development a State needs to have an approved State Safety Oversight
program.
FTA Response: In response to comments regarding the National Safety
Plan, FTA confirms that Sec. 674.19(a) states, ``the Administrator
must determine whether an SSO program is adequate to promote the
purposes of 49 U.S.C. 5329, including, but not limited to, the National
Public Transportation Safety Plan, the Public Transportation Safety
Certification Training Program, and the Public Transportation Agency
Safety Plans.'' The National Safety Plan presents (1) safety
performance criteria for all recipients that must develop ASPs under 49
CFR part 673, including safety performance measures related to the
safety risk reduction program, and (2) voluntary minimum safety
standards and recommended practices to support mitigation of safety
risk and to improve safety performance. FTA confirms the National
Safety Plan does not establish a ceiling related to a State's SSO
program requirements and reiterates that the standards and recommended
practices presented in Chapter III of the National Safety Plan are
voluntary in nature. In terms of standards with which an SSO program
must be consistent, FTA notes Chapter II of the National Safety Plan
outlines the safety performance measures required of all agencies
subject to the PTASP regulation for which each RTA must set safety
performance targets and document them in their ASP. Finally, if any
changes are needed to program documentation, FTA expects SSOAs and RTAs
to make any needed changes to program documentation through the
organizations' next review and update cycles based on existing SSO and
ASP review processes. FTA confirms that the publication of a revised
National Safety Plan does not require a new certification for each
State. A State must have a certified State Safety Oversight Program by
the time a rail fixed guideway public transit system reaches the
engineering or construction phase.
2. Section 674.19(c) and (d)--Issuance of Denial
Comments: An industry association requested that FTA provide
criteria in the rule for how FTA or the FTA Administrator would make a
determination regarding certification, including a determination of
whether an SSOA is ``inadequate'' or ``incapable,'' as described in
statute at 49 U.S.C. 5329(e)(8)(A). Two SSOAs requested clarification
on the timeframe for certification or denial of certification and any
related follow-up timeframes. One SSOA expressed support for the
regulatory language that accommodates an SSOA developmental plan and
schedule to support the FTA Administrator's evaluation of the SSOA. The
commenter recommended that such a plan and schedule should be able to
accommodate related processes such as hiring that may involve a
different group and/or agency. Two SSOAs asked for clarification on the
term ``cognizant.''
Two SSOAs expressed concern that withholding of funds for SSOAs
that are unable to meet the requirements for certification may be
counterproductive. One SSOA commenter expressed the need for
clarification regarding the distinction between the terms SSO
[[Page 83963]]
program, SSOA, and State as they relate to the requirements of Sec.
674.19(d) and 49 U.S.C. 5329.
FTA Response: FTA first notes Sec. 674.19 of this rule is
substantially similar to the 2016 rule. With respect to the request to
define criteria in part 674 that FTA would use to evaluate SSO agency
capabilities, FTA declines to establish additional criteria beyond the
requirements established in this final rule. In an instance where an
SSO program does not meet the requirements of 49 U.S.C. 5329, the
Administrator will provide a written explanation and allow the State an
opportunity to modify and resubmit SSO program documentation for the
Administrator's approval. FTA has not defined a set timeframe for
issuing a certification or denial of certification or deadlines for any
necessary follow-up activity. FTA appreciates the support for the
regulatory language addressing the developmental plan and schedule to
support the FTA Administrator's evaluation of an SSOA and notes that
the developmental plan and schedule should include and address the
issues identified by the commenter, including hiring and interagency
communications. The term ``cognizant SSOA'' is used to refer to the
relevant or recognized SSOA and means the entity is aware of its role
as an SSOA for the State. Further, FTA notes that this language has
been used in part 674 since its promulgation in 2016.
In response to the comments received regarding the effectiveness of
withholding funds, FTA confirms that the withholding of funds is an
option available to the Administrator under 49 U.S.C.
5329(e)(7)(D)(ii), 5329(e)(8)(C), and 5329(g). Further, FTA notes that
statutory and regulatory language does not require the Administrator to
withhold funds but states that the Administrator ``may'' withhold
funds.
As to the relationship between a State, SSOA Program, and SSOA, the
SSOA is the agency within a State that carries out the State's SSO
Program. Necessarily, FTA monitors SSOA compliance with regulatory
requirements in addition to other inputs to ensure a State is meeting
its statutory requirements to establish an SSO Program that is adequate
to promote the purposes of 49 U.S.C. 5329.
F. Section 674.21--Withholding of Federal Financial Assistance for
Noncompliance
Comments: FTA received comment submissions from two SSOAs and one
industry association regarding the withholding of funds for non-
compliance and the requirement for an SSO program to be approved by the
FTA Administrator prior to a rail fixed guideway public transportation
system entering the engineering or construction phase in a State
without any rail fixed guideway public transit systems (new entrants).
All three commenters noted that with the previous transition from part
659 to part 674, States were afforded three years to develop compliant
programs and achieve certification. The commenters asserted the
proposed change to base the timeline on the developmental progress of
an RTA does not afford a new SSOA sufficient time to achieve SSO
program certification. The commenters recommended FTA establish a
three-year timeframe for a new State to establish a compliant SSO
program.
FTA Response: The statute at 49 U.S.C. 5329(e)(2) requires States
to provide safety oversight for any rail fixed guideway public
transportation system in the engineering or construction phase of
development within the jurisdiction of the State that will not be
subject to regulation by the Federal Railroad Administration (FRA).
This is not new. Therefore, a State without any rail transit systems is
obligated to stand up an SSO program before a new rail transit system
enters the engineering or construction phase of development. FTA notes
the three-year timeframe defined in the previous part 674 was
established by statute to support the transition of existing SSO
programs to a new rule (from part 659 to part 674). To ensure a State
meets its statutory requirement to provide safety oversight for any
rail fixed guideway public transportation system in the engineering or
construction phase of development, a three-year certification process
is not feasible. FTA encourages States without an SSOA and with a new
rail transit project in the planning stage to coordinate with FTA and
the rail transit project sponsor early in the project development
process to support the development of compliant SSO programs.
G. Section 674.23--Confidentiality of Information
Comments: One SSOA commenter requested clarification on the
criteria that a State or RTA should use to withhold a report from being
admitted as evidence or used in a civil action for damages resulting
from a matter mentioned in the report. The commenter also asked for
clarification on the use of the term ``security'' in Sec. 674.23(b).
FTA Response: Section 674.23(b) provides that part 674 does not
require security-sensitive information to be publicly available. This
language is unchanged from the previous version of part 674 and stems
from FTA's relationship with the Transportation Security Administration
(TSA) and the elimination of requirements for System Security Plans
previously required under 49 CFR part 659. As FTA noted in the
publication of the original part 674 in 2016, TSA, an agency of the
United States Department of Homeland Security (DHS), has the
prerogative and responsibility for all rulemakings on security in
public transportation. Specifically, under the Implementing the
Recommendations of the 9/11 Commission Act of 2007 (Pub. L. 110-53),
the September 2004 Memorandum of Agreement between DOT and DHS, and the
September 2005 modal annex between FTA and TSA, DHS is tasked with the
responsibility for carrying out a national strategy for public
transportation security to minimize security threats and to maximize
the ability of public transportation agencies to mitigate damage from
terrorist attacks and other major incidents. While this does not
preclude RTAs from implementing measures securing their assets, it is
no longer the responsibility of the SSOAs to oversee those measures.
FTA recognizes, of course, that some of the steps an RTA takes to
ensure the personal safety and security of its riders and employees
will overlap with steps it takes to secure its system from a terrorist
attack, such as the steps an agency takes that are part of a threat and
vulnerability assessment.
H. Section 674.25--Role of the State Safety Oversight Agency
FTA received comments from twelve commenters regarding Sec.
674.25, including seven SSOAs, two RTAs, one industry association, one
individual, and one contractor.
1. General
Comments: One RTA commenter recommended that FTA consider
acknowledging the role of the SSOA engaging in active assistance of the
RTA. The commenter noted that FTA's transition away from the ``system
safety'' approach codified within the former part 659 to the current
SMS approach of part 674 relies on the design of workable and effective
processes to manage safety risk and evaluate the results of those
efforts. To achieve success, the commenter asserted, SSO programs
should not only entail compliance-based processes but should include
engagement in continuous improvement processes, best practices, and
other assistance.
[[Page 83964]]
FTA Response: FTA agrees that effective SSO programs will focus on
more than just compliance. FTA encourages SSOAs to develop and
implement oversight practices that support an SMS and that apply
continuous improvement principles and best practices. FTA notes that
new SSOA requirements related to risk-based inspections, oversight of
safety risk mitigations, and data to support oversight of safety risk
management activity align with this focus.
2. Section 674.25(a)--Minimum Standards
Comments: Two SSOAs and one industry association requested that FTA
clarify the meaning of the term ``minimum standards for safety'' in
Sec. 674.25(a), asserting that without a clear understanding of this
term, SSOAs would not know what baseline or criteria FTA would use to
audit SSOA compliance. One SSOA commenter requested clarification on
whether the National Safety Plan reference in Sec. 674.25(a) means
that SSO program standards cannot go beyond the requirements
established within FTA's National Safety Plan. Further, the commenter
expressed concerns over potential situations where information in the
National Safety Plan conflicts with a State's SSO program. The
commenter requested clarification on what elements within the National
Safety Plan require consistency with the SSO program and an RTA's ASP.
FTA Response: Subsection 674.25(a) remains unchanged from the 2016
rule and FTA is not aware of any difficulties in SSOAs implementing the
rule. FTA defines the requirements for SSO programs and SSO program
standards in this final rule, with Sec. 674.27 describing the required
components of an SSO program standard. FTA notes that in this way the
regulation establishes minimum safety requirements and confirms that an
SSOA may establish standards and requirements beyond the minimum
requirements of part 674 in their SSO program standard. FTA will audit
SSOAs to ensure that the SSO program standard meets the requirements of
part 674 and that the SSO program standard is being carried out as
written.
FTA confirms that Sec. 674.25(a) requires an SSOA to establish
minimum standards for the safety of all rail fixed guideway public
transportation systems within its oversight that are consistent with
the National Safety Plan. As noted in section E.1 of this preamble, the
National Safety Plan presents (1) safety performance criteria for all
recipients that must develop ASPs under 49 CFR part 673, including
safety performance measures related to the safety risk reduction
program and (2) voluntary minimum safety standards and recommended
practices to support mitigation of safety risk and to improve safety
performance. The National Safety Plan does not establish a limit or
ceiling related to a State's SSO program requirements and the standards
and recommended practices presented in Chapter III of the National
Safety Plan are voluntary in nature. FTA notes that Chapter II of the
National Safety Plan outlines the safety performance measures required
of all agencies subject to the PTASP regulation for which each RTA must
set safety performance targets and document them in their ASP.
3. Section 674.25(b)--Agency Safety Plan Review and Approval
Comments: One RTA commenter asked if Sec. 674.25(b) establishes a
requirement for an annual ASP review and approval. One SSOA commenter
recommended that FTA revise regulatory text to include a reference to a
State's ``SSO program'' and suggested that the use of general terms
makes compliance difficult if not impossible. Further, the commenter
recommended that FTA revise the existing regulatory text in Sec.
674.25(b) from ``enforce the execution'' to ``enforce the compliance,''
asserting that execution is the responsibility of the RTA's Accountable
Executive and the SSOA is responsible for compliance.
FTA Response: Subsection 674.25(b) is substantially unchanged from
the 2016 rule. Subsection 673.25(b) does not establish timeframe
requirements for an RTA's ASP review process. FTA notes that the PTASP
regulation at Sec. 673.11(a)(5) requires each transit agency to
conduct an annual review of its ASP. Subsection 673.25(b) requires an
SSOA to review and approve an RTA's ASP and subsequent updates to the
ASP that may result from the required annual review. FTA disagrees with
the commenter who suggested the language in Sec. 673.25(b) makes
compliance difficult if not impossible and notes the language at Sec.
673.25(b) remains unchanged from the original publication in 2016 and
to date has not resulted in compliance issues. Further, FTA declines to
replace the word ``execution'' with ``compliance'' and notes SSOAs are
charged with overseeing compliance, which means ensuring that an RTA
executes its ASP. Subsection 673.25(b) suggests that SSOAs can do this
through a CAP or other enforcement means based on which type of
enforcement tool would be appropriate or necessary given the specifics
of the compliance issue.
4. Section 674.25(c)--Engineering and Construction
Comments: Six SSOAs, one RTA, and one contractor submitted comments
related to Sec. 674.25(c) and the requirement for SSOAs to provide
oversight of an RTA's project(s) in the engineering and construction
phase to verify compliance with Federal and State safety requirements.
Two SSOA commenters requested that FTA develop guidance on the
SSOA's role in oversight of major capital projects, including instances
where FTA is utilizing its Project Management Oversight (PMO) program.
One contractor commented that the project phase terminology used in the
rule is not the same as the project phases of the PMO program.
One SSOA commenter requested clarification on the SSOA's
responsibilities to ensure proper compliance during engineering and
construction and whether the SSOA is responsible for overseeing all
aspects of a capital project. One contractor and one SSOA commenter
asserted the phrase ``applicable Federal and State safety
requirements'' is very broad. These commenters and an additional SSOA
commenter sought clarification on the scope of oversight, including
clarification that FTA does not intend for SSOAs to perform the
oversight functions of FTA's PMO contractors for certain rail projects,
including things that are normally outside of the purview of the SSOA,
such as budgeting, financial planning, social and economic equity, and
environmental protection. Three SSOA commenters recommended that there
be a clear distinction between the roles and responsibilities of FTA's
PMO contractors and the SSOA and clarity regarding SSOA responsibility.
Two SSOA commenters recommended that FTA extend oversight
responsibility earlier in the life of an RTA project, to the planning
phase. One SSOA commenter and one individual objected to the
requirements for oversight of projects in the engineering or
construction phase. The SSOA commenter asserted the language of Sec.
674.25(c) is too vague, impractical, and duplicative of existing
processes, including FTA's PMO program. The SSOA commenter recommended
FTA convene an industry working group to evaluate the provision before
implementation. The SSOA commenter requested FTA provide additional
clarification regarding applicable projects, scope for compliance, and
relationship with existing oversight
[[Page 83965]]
programs. Further, the SSOA commenter disagreed with FTA's assertion
that the language in this subsection parallels the statutory language
in 49 U.S.C. 5329(e)(2)(B) and clarifies FTA's intent that SSOAs take
an active oversight role during a project's pre-revenue phases.
Instead, the commenter suggested, the terminology is used in statute
only to define ``eligible states'' and should not be interpreted by FTA
to define the scope of safety oversight.
One RTA commenter requested revising the language of Sec.
674.25(c) to add ``on a rail fixed guideway public transportation
system'' to add additional qualifying language for the term ``RTA
project.''
FTA Response: FTA appreciates the request for additional guidance
related to the SSOA's role in oversight of engineering and construction
of major capital projects, including instances where FTA is utilizing
its PMO program, and will consider this topic for future guidance and
technical assistance. FTA confirms that the terminology ``engineering
or construction phase'' is not the same as the terminology used in
FTA's PMO program. The terminology at Sec. 674.25(c) comes from 49
U.S.C. 5329(e)(2)(B) whereas the PMO phases are based on project
development standards. FTA is not establishing a new interpretation but
is using existing statutory language. Under the original 49 CFR part
659, FTA established revenue service as the start of State safety
oversight. Under the Intermodal Surface Transportation Efficiency Act
of 1991 (ISTEA, Pub. L. 102-240), Congress moved the start of State
oversight to planning and design phases. Under Moving Ahead for
Progress in the 12st Century Act (MAP-21, Pub. L. 112-141), Congress
moved the start of State oversight to the construction or engineering
phase where it remains today. FTA's understanding of Congressional
intent establishes the engineering or construction phase as the start
of required safety oversight responsibility for States. However, States
may choose to oversee the safety of rail projects earlier in the
process at their discretion. FTA notes Sec. 674.25(c) provides SSOAs
flexibility, and SSOAs should address the determination of
``engineering or construction phase'' in the SSO program standard.
Criteria examples may include triggering events such as project
groundbreaking, solicitation of bids for construction activity, a
finding of no significant impact under the National Environmental
Policy Act (NEPA), etc.
FTA confirms that an SSOA is not responsible for overseeing aspects
of a project that are traditionally addressed through FTA's PMO
program, including areas such as budgeting, financial planning, social
and economic equity, and environmental protection, and notes the SSOAs
oversight responsibilities are limited to safety. FTA agrees with
commenters who recommended a clear distinction between the roles and
responsibilities of FTA's PMO contractors and the SSOA and notes that
SSOAs are not expected to conduct PMO reviews of grantees or recreate
such processes. Instead, FTA expects SSOAs to work with RTAs to ensure
the development of necessary program elements, processes, and
documentation that address the requirements of 49 CFR part 673, 49 CFR
part 674, and the State's SSO program standard.
As for the comments that recommended extending a State's oversight
responsibility to earlier in the life of an RTA project, to the
planning phase, FTA declines to make this change and notes that, as
mentioned above, ISTEA provided SSOAs with this authority, but under
MAP-21, Congress moved the start of oversight from the design phase to
the construction or engineering phase where it remains today. Further,
FTA notes that mandating an earlier involvement would represent a
significant change from existing requirements and would require
additional notice and comment.
FTA declines to remove of the requirement for States to ensure the
safety oversight of projects in the engineering or construction phase
and notes the requirements and language of Sec. 674.25(c) are
established in statute and are not new. Further, FTA reiterates the
requirement for a State to oversee safety of a rail project during the
engineering or construction phase is not duplicative of the PMO process
and is not intended to recreate PMO-related processes. FTA does not
believe it is necessary to establish an industry working group to
evaluate the provision before implementation. As mentioned earlier in
this section, FTA will consider the topic of the SSOA's role in
oversight of major capital projects and the relationship to the PMO
program for future guidance and technical assistance. Further, FTA
disagrees with the commenter's assessment that the statutory language
should not be used to establish the scope of safety oversight. FTA
notes that this interpretation has been applied by FTA since the
publication of the first Section 5329 apportionment on March 10, 2014
(79 FR 13380) and this was reiterated in the publication of the
original 49 CFR part 674 in 2016 (81 FR 14256).
Finally, declines to add the phrase ``on a rail fixed guideway
public transportation system'' to Sec. 674.25(c) as FTA does not
believe such a change serves to clarify the existing requirement.
5. Section 674.25(d)--Agency Safety Plan Requirements
Comments: One SSOA commenter recommended FTA amend Sec. 674.25(d)
to reflect the requirements in 49 U.S.C. 5329(k) for SSOAs to conduct
risk-based inspections, asserting that ASPs should address an SSOA's
risk-based inspection program. One SSOA commenter requested
clarification on SSOA jurisdiction over transit systems and projects
that are not related to rail transit, noting that currently SSOAs have
no such jurisdiction unless they are granted that authority on a State
level.
FTA Response: This provision is in Sec. 675.25(b) of the 2016
rule. The intent of Sec. 674.25(d) is to address the SSOA's obligation
to assure the RTA is in compliance with PTASP provisions at 49 U.S.C.
5329(d) and the PTASP rule at 49 CFR part 673. Part 673, at Sec.
673.11(a)(6) addresses the new requirement in 49 U.S.C. 5329(k) so is
already captured in regulatory text. Further, FTA has revised the
definition of ``State Safety Oversight Agency'' at Sec. 674.7 to
include the reference to 49 U.S.C. 5329(k) to incorporate the risk-
based inspection requirements established by the BIL. FTA confirms that
part 674 does not establish any requirement for SSOAs to oversee the
safety of bus systems, even bus services operated by transit agencies
that also provide rail service applicable under part 674. SSOAs are
responsible for overseeing an RTA and ensuring its ASP meets the
requirements for part 673. FTA notes that some ASPs address both rail
and bus operations. Part 674 does not require SSOAs to evaluate part
673 compliance for bus services. However, this final rule does not
prevent SSOAs from performing additional oversight activities at their
discretion pursuant to their State laws.
6. Section 674.25(e)--Allegations of Noncompliance
Comments: One SSOA commenter expressed concern at the language
within Sec. 674.25(e) that assigns the SSOA with the primary
responsibility for investigating ``any allegation of noncompliance,''
asserting this puts undue responsibility on an SSOA and fails to
address the RTA's responsibility to address and respond. The commenter
also noted there is no SSOA notification or reporting requirement in
the
[[Page 83966]]
proposed rule or other FTA regulations for allegations of
noncompliance. One individual requested that FTA add a reference to 49
U.S.C. 5330 when describing the Administrator's authority.
FTA Response: This subsection is identical to Sec. 675.25(d) of
the 2016 rule. The final rule continues to require SSOAs to investigate
allegations of noncompliance when those allegations are brought to the
attention of the SSOA. Further, FTA does not believe that the
requirement for SSOAs to investigate allegations of noncompliance
absolves an RTA for carrying out its own processes to address such
safety concerns according to processes defined in the RTA's ASP. FTA
declines to add a reference to 49 U.S.C. 5330, noting the statute was
repealed in 2019 in accordance with section 20030(e) of MAP-21, and 49
U.S.C. 5329(f) provides the Administrator's authority.
7. Section 674.25(f)--Investigations
Comments: Two SSOA commenters suggested that Sec. 674.25(f)
include additional language explicitly authorizing the SSOA to delegate
investigation authority to the RTA. One individual commenter suggested
FTA include an additional requirement in Sec. 674.25(f) for
investigation reports to clarify corrective actions to prevent
recurrence and assign a corrective action plan identification number.
FTA Response: FTA declines to add additional language to Sec.
674.25(f) regarding the delegation of investigation responsibility to
the RTA and notes this is addressed at Sec. 674.35(b). FTA declines to
require CAPS to be included in investigation reports and notes FTA has
established requirements for CAPs at Sec. 674.35. Further, nothing in
the rule prevents an SSOA from requiring the documentation of CAPs
within a final investigation report.
8. Section 674.25(g)--Contractor Investigation Support
Comments: One individual commenter suggested FTA add additional
text to Sec. 674.25(g) to reference incidents and occurrences and to
note that the SSOA is responsible for the investigations.
FTA Response: FTA declines to revise Sec. 674.25(g) and notes that
part 674 has eliminated references to incidents and occurrences with
the transition to the new definition of ``safety event'' in parts 673
and 674. Further, FTA it is not necessary to restate the SSOA's primary
responsibility for investigation, as that is stated in Sec. 674.25(f).
9. Section 674.25(h)--SSOA Compliance With PTSCTP
Comments: One commenter noted that FTA has removed the PTSCTP
curriculum in the proposed revisions to 49 CFR part 672 (88 FR 73573).
The commenter asked where they could find guidance on PTSCTP to ensure
minimum standards are developed consistent with PTSCTP. The commenter
also recommended FTA revise the language of Sec. 674.25(h) to include
the term ``designated personnel'' or simply state, ``SSOAs must comply
with Part 672.''
FTA Response: FTA notes that information on PTSCTP can be found at
FTA's safety training website: <a href="https://www.transit.dot.gov/regulations-and-guidance/safety/safety-training">https://www.transit.dot.gov/regulations-and-guidance/safety/safety-training</a>. FTA has revised Sec. 674.25(h) to
include the term ``designated personnel.''
I. Section 674.27--State Safety Oversight Program Standards
1. Section 674.27(a)(3)--Disposition of RTA Comments
Comments: FTA received comments from three SSOAs, two RTAs, and one
individual related to Sec. 674.27(a)(3). The three SSOA commenters
generally agreed with FTA's proposal. Two of these SSOA commenters
requested clarification that SSOAs would not be required to accept all
suggestions made by the RTA. The other SSOA commenter noted that the
process described in Sec. 674.27(a)(3) is already being implemented
and documented in SSO program standards. One RTA commenter requested
FTA define additional minimum requirements for this process, including
specifically how comments are submitted, request and response
timeframes, expectations, and approval processes. One RTA commenter
supported the proposed requirement and urged FTA to formalize its role
in settling jurisdictional questions and interpretations of FTA
regulations by establishing a process for SSOAs and RTAs to bring
matters of disagreement before a hearing with FTA. Similarly, one
individual commenter suggested FTA needs to collaborate with SSOAs to
develop and formalize a conflict resolution and escalation process for
FTA and SSOAs.
FTA Response: FTA appreciates commenters' support for the
provisions at Sec. 674.27(a)(3) and thanks those SSOAs and RTAs that
are already implementing this process. FTA confirms the requirement at
Sec. 674.27(a)(3) does not require the SSOA to accept all suggestions
made by the RTA. FTA declines to establish additional minimum
requirements related to this process and preserves the flexibility of
SSOAs to define these aspects but notes that an SSOA is responsible for
defining how it will address the requirements and documenting this in
the SSO program standard. FTA declines to establish a hearing process
for conflicts between SSOAs and RTAs, noting that is outside the scope
of this regulation. Further, FTA notes that it does not serve in a
mediator role between RTAs and SSOAs and can use existing mechanisms to
support intervention with RTAs and SSOAs if necessary. Similarly,
developing a conflict resolution process is outside the scope of this
current regulatory effort. However, FTA will consider these suggestions
for SSOAs and RTAs as topics for future rulemakings.
2. Section 674.27(a)(5)--Oversight of RTA Public Transportation Agency
Safety Plans and Internal Safety Reviews
Comments: FTA received comments from three SSOAs and one contractor
related to Sec. 674.27(a)(5). One SSOA commenter noted that SSOAs are
already implementing the activities required in the proposed rule. Two
SSOA commenters requested clarification on the use of the term
``internal safety review'' and noted that in the past, FTA had referred
to these activities as ``internal audits.'' Further, the two commenters
noted that State Safety Oversight Reporting Tool (SSOR) uses the phrase
``internal audit'' and that other programs, such as PTSCTP, refer to
``audits and examinations,'' and pointed out that the Transportation
Safety Institute (TSI) delivers courses titled ``Transit Safety and
Security Audits.'' The commenters sought clarification on whether the
terminology change in the rule is intended to ``lower the bar'' for
internal safety reviews. One contractor suggested the phrase ``the SSOA
will receive and evaluate all material submitted under the signature of
an RTA's Accountable Executive'' was too broad and, taken literally,
could mean any document the Accountable Executive signs. The contractor
also commented that 49 CFR part 673 does not include the specific
internal safety review requirements established in Sec.
674.27(a)(5)(i-iv) and that FTA should require RTAs to document the
associated processes in their ASP.
FTA Response: Paragraph 675.27(a)(5) is substantially similar to
paragraph 675.27(a)(4) of the 2016 rule, so FTA is encouraged to know
SSOAs and RTAs are complying with the 2016 rule. FTA notes that under
part 659, FTA referred to this activity as ``internal safety and
[[Page 83967]]
security audits.'' With the transition to 49 CFR part 674 in 2016, FTA
used the term ``internal safety reviews'' to describe this activity at
Sec. 674.27(a)(4). With this final rule, FTA continues to use the term
``internal safety review,'' and the terminology does not ``lower the
bar'' for this RTA function. To the contrary, FTA has defined explicit
requirements for internal safety reviews at Sec. Sec. 674.27(a)(5)(i-
iv). FTA confirms the SSOR uses the terminology ``internal safety
review.'' Finally, FTA confirms that Sec. 674.27(a)(5) does not
require the SSOA to evaluate all material that an Accountable Executive
may sign. Instead, in alignment with the title of the paragraph, the
requirement at Sec. 674.27(a)(5) applies to the oversight of RTA ASPs
and internal safety reviews and includes documents the RTA submits to
the SSOA under signature of the Accountable Executive to address SSO
program requirements, such as an RTA's ASP and the RTA's annual report
on internal safety reviews. Further, FTA confirms that Sec.
673.27(d)(1)(iii) requires RTAs to address any specific internal safety
review requirements established by their SSOA in the ASP.
3. Section 674.27(a)(6)--Oversight of Safety Risk Mitigations
Comments: FTA received comments from three SSOAs and one RTA
related to Sec. 674.27(a)(6) and the requirements for the oversight of
RTA safety risk mitigations. One SSOA commenter noted that SSOAs are
already implementing the activities required in the proposed Sec.
674.27(a)(6). Two SSOA commenters noted that under the requirements of
49 CFR part 673, RTAs determine mitigation effectiveness through their
safety assurance processes. Further, the commenters noted the SSOA
receives and reviews information on RTA safety risk mitigations for
oversight of compliance, but the RTA Accountable Executive and Chief
Safety Officer are empowered to dictate the action of the RTA. One RTA
commenter noted their safety risk mitigation processes have been
documented, approved by the SSOA, and implemented since 2020, but if
the SSOA were to establish new requirements related to safety risk
mitigations, it could be disruptive to the maturation of the RTA's SMS
and burdensome. The commenter recommended FTA encourage SSOAs to review
existing mitigation processes instead of establishing completely new
requirements. One SSOA commenter asked for confirmation that the
requirements of Sec. 674.27(a)(6) were considered in the rule's cost
estimate.
FTA Response: FTA appreciates the support for this provision and
thanks SSOAs that currently oversee the safety risk mitigations of an
RTA as required at Sec. 674.27(a)(6). FTA generally agrees with the
statement that while an SSOA receives information regarding safety risk
mitigations, it is RTA's Accountable Executive and Chief Safety Officer
that are empowered to direct the action of the RTA, and notes it is not
in conflict with the requirements at Sec. 674.27(a)(6). FTA notes that
these requirements do not charge SSOAs with monitoring the
effectiveness of safety risk mitigations but instead require SSOAs to
define a process in the SSO program standard for reviewing information
and data related to safety risk mitigations to ensure that the RTA is
developing, implementing, and monitoring safety risk mitigations
according to the documented and approved processes in their ASP. FTA
confirms that nothing in this final rule establishes new requirements
for how an RTA identifies, implements, and monitors safety risk
mitigations, nor does the rule require SSOAs to establish new
requirements for how an RTA identifies, implements, and monitors safety
risk mitigations. Finally, FTA confirms that Sec. 674.27(a)(6) was
considered when developing the rule's cost estimate. FTA notes that
Sec. 674.27(a)(6) does not establish a new oversight requirement but
explicitly identifies existing oversight responsibility. Safety risk
mitigations are an existing required element of an SMS that must be
addressed in an ASP and are included in SSOA oversight
responsibilities. As such, this provision does not create additional
oversight burdens.
4. Section 674.27(a)(7)--Oversight of RTA Compliance With the Public
Transportation Safety Certification Training Program
Comments: FTA received comments from five SSOAs, one RTA, one
industry association, and one contractor related to Sec. 674.27(a)(7)
and the requirements for the oversight of RTA compliance with the
PTSCTP. One SSOA commenter noted that SSOAs are, for the most part,
already implementing the activities required in Sec. 674.27(a)(7). The
remaining four SSOAs, one RTA, and one industry association expressed
concern with language that seems to require the SSOAs to formally
review and approve each RTA designation for the purposes of PTSCTP
designated personnel and to formally review and approve each refresher
training administered by the RTA. Three SSOA commenters and one
industry association commenter disagreed that SSOAs should be approving
these PTSCTP designations and trainings, noting that this should be the
responsibility of the RTA. One RTA commenter noted that under part 672,
this responsibility is given to the RTA. Several commenters also noted
that this would place an additional burden on SSOAs and would be
duplicative of existing efforts, and one SSOA asked for confirmation
that required approvals were considered in the estimate of burden.
FTA Response: FTA appreciates the support for this provision and
acknowledges those SSOAs that currently oversee the RTA compliance with
the PTSCTP consistent with Sec. 674.27(a)(7). FTA appreciates the
concerns raised by commenters regarding the proposed language that
seemed to require the SSOAs to formally review and approve each RTA
designation for the purposes of PTSCTP designated personnel and to
formally review and approve each refresher training administered by the
RTA. FTA has revised the language in this final rule to address the
concerns raised by these commenters. FTA clarifies that Sec.
674.27(a)(7) requires SSOAs to oversee RTA compliance with PTSCTP
requirements and that SSOAs may define in their SSO program standard
how they will oversee RTA compliance. FTA confirms that the rule's cost
estimate does not include costs associated with formal SSOA approval of
designations and refresher training development because the final rule
does not require these approvals.
5. Section 674.27(a)(8)--Triennial SSOA Audits of RTA Public
Transportation Agency Safety Plans
Comments: One SSOA commenter requested clarification on the use of
the term ``agree'' and whether that meant if an RTA does not agree to
an ongoing review over the three-year period, would the SSOA be forced
to perform one triennial audit, or could the SSOA determine, at its own
discretion, to do audits on an ongoing basis.
FTA Response: The language in paragraph 674.27(a)(8) is identical
to Sec. 674.27(a)(5) of the 2016 rule and FTA believes this language
is sufficient to support SSOA audit scheduling with RTAs. The
scheduling of the SSOA's triennial audit is expected to be cooperative
between the SSOA and RTA while recognizing the SSOA is responsible for
conducting triennial audits in compliance with part 674 and as
specified in the SSO program standard. If an RTA takes issue with the
triennial audit schedule as outlined in the SSO program standard, the
RTA
[[Page 83968]]
may provide a comment or suggestion to the SSOA as permitted under
Sec. 674.27(a)(3).
6. Section 674.27(a)(9)--Safety Event Notifications
Comments: Two SSOA commenters requested clarification on the
notifications referenced in Sec. 674.27(a)(9) and suggested that FTA
not require the notification of events that do not meet the
notification criteria in Sec. 674.33.
FTA Response: Except for changing ``accident'' to ``safety event''
and adding FTA as an entity the RTA needs to report to, this provision
is the same as the provision at Sec. 674.27(a)(6) of the 2016 rule.
FTA has designated safety events in Sec. 674.33 as minimum
requirements and does not want to limit SSOAs if they wish to have RTAs
report on safety events that do not appear in Sec. 674.33.
7. Section 674.27(a)(10)--Investigations
Comments: Two SSOA commenters requested FTA clarify that an SSOA
may delegate investigation responsibility to the RTA and adopt the
final report as its own. One of the SSOA commenters noted that it may
be difficult to detail the role of the SSOA in supporting any safety
event investigation conducted by the NTSB or FTA as those entities will
be leading the safety event investigation and utilize the resources of
the SSOA on a case-by-case basis.
FTA Response: More detail on this requirement is in Sec.
674.35(b), ``The SSOA is ultimately responsible for the sufficiency and
thoroughness of all investigations, whether conducted by the SSOA or
RTA. If the SSOA requires an RTA to investigate a safety event, the
SSOA must conduct an independent review of the RTA's findings of
causation.'' Further, Sec. 674.35(b) states, ``The SSOA must formally
adopt the report of a safety event . . .''
FTA recognizes the involvement of the NTSB and FTA in safety event
investigations processes may vary based on the investigating body and
defining the role of the SSOA may be difficult. Given this
circumstance, the regulation deliberately does not define the SSOA's
role and processes in the regulation with respect to the NTSB or FTA
role in leading safety event investigations. Safety event
investigations are not always routine, and agencies, particularly the
SSOA and RTA, may need to be flexible during the investigation process
when the NTSB and FTA are involved.
8. Section 674.27(a)(11)--Corrective Actions
Comments: One SSOA questioned FTA's use of the word ``order'' and
recommended that SSOAs use wording within their SSOA's authority to
outline how an RTA must develop and carry out a CAP. Further, the
commenter noted the conflict management language proposed in Sec.
674.27(a)(11) would also be useful for other required SSO program
activity.
FTA Response: FTA acknowledges the commenter's concern with the use
of the phrase ``the SSOA must order the RTA to develop and carry out a
CAP.'' In this case, the term ``order'' is a synonym used in place of
the word ``require.'' Moreover, this language is identical to that
found in the 2016 rule at Sec. 674.37(b).
9. Section 674.27(a)(12)--Inspections
Comments: The NTSB, one SSOA, two RTAs, and two individuals
commented on the proposed requirements at Sec. 674.27(a)(12). The NTSB
commented that effective risk-based inspection programs rely on
adequate staffing and noted that it is reviewing whether staffing
shortages at an SSOA may have played a role in a 2023 rail safety event
in Chicago. Further, the NTSB expressed support for the proposal for a
risk-based inspections program but noted that FTA should develop and
issue minimum inspection requirements for a basic list of safety topics
that SSOAs should have in their risk-based inspection programs, which
would include required topics such as roadway worker protection, hours
of service, and fatigue risk management.
One SSOA commenter suggested FTA retitle this paragraph from
``Inspections'' to ``Risk-Based Inspections'' because the specific
requirements are associated with risk-based inspections programs. One
RTA commented that an SSOA's risk-based inspection program should
follow the principles of SMS in utilizing safety risk information to
prioritize oversight action and stated that an SSOA's risk-based
inspection program procedures should include presenting the transit
agency with the SSOA's basis for conducting any given inspection, and
this basis should be expressed in safety risk terms. The RTA noted that
focus on areas that are not risk-based or not associated with the
highest levels of safety risk can result in an inappropriate allocation
of transit agency resources as the agency pursues corrective actions or
other responses that may not effectively mitigate safety risk.
One SSOA commenter asked for FTA to define the terms ``resources,''
``qualified personnel,'' and ``complexity,'' asserting FTA will
evaluate SSOAs based on these criteria and SSOAs need to understand
these terms to ensure compliance. One individual commented that SSOAs
should have the authority to enter rail transit facilities without
prior notice to perform safety inspections to show ``normal''
conditions, that inspections should be proactive to confirm or improve
safety, and that there should be no punitive consequence for the
transit agency unless inspections show little or no improvement.
One RTA commenter requested that FTA add language in Sec.
674.27(a)(12)(iii) requiring SSOAs to design risk-based inspections
programs in consultation with the RTA to parallel language at 49 U.S.C.
5329(k)(1)(B). One SSOA commenter asked FTA to consider adding language
to Sec. 674.27(a)(12)(iii) that addresses announced inspections. The
SSOA commenter also asked FTA to consider additional language requiring
RTAs to grant SSOA personnel access for inspections. One individual
commented that while the proposed rule ensures that SSOAs have the
authority to enter rail transit facilities without prior notice to
perform safety inspections, FTA should also develop consequences for
RTAs that refuse to allow FTA officials to enter their right of way
that include fines to individuals and the RTA. In addition, FTA should
require RTAs to share track charts to provide FTA with an understanding
of the right of way they are accessing and require FTA officials to
carry a radio compatible with the RTAs they inspect to communicate with
dispatchers regarding their presence and itinerary.
FTA Response: FTA agrees that adequate staffing is critical to
ensuring the effectiveness of an inspection program. Proper staffing
for SSOA programs, including inspection responsibilities, is also
covered at Sec. 674.11(d) and is examined during initial certification
and regular audits of the SSOAs. In the instance an SSOA is discovered
to be short of staffing or in need of increased resources, FTA may
address this through issuing special directives. With respect to the
comment asking for clarity of defining and setting expectations on
appropriate SSOA staffing levels and resources, FTA recognizes that all
SSOA programs are unique and face different challenges. Additionally,
SSOA oversight responsibilities may change over time, requiring a
modification in staffing resources. For instance, the opening of
[[Page 83969]]
a new rail transit system, major extension of a system, or significant
safety challenges at a system may require additional SSOA staffing
resources to support more oversight. Further, the closing of a rail
transit system may require less SSOA staffing resources. FTA declines
to amend the regulatory text, to ensure the regulation can accommodate
everchanging circumstances at rail transit agencies and allow the SSOA
programs to adjust staffing resources and oversight responsibilities as
necessary.
FTA appreciates the request for more specific and/or minimum SSOA
risk-based inspection requirements, such as roadway worker protection,
hours of service, and fatigue management. FTA will maintain the risk-
based inspection program as practice driven and prioritized by SSOA and
RTA risk management rather than prescribing areas for the inspection
program to regularly examine. However, FTA will keep this comment in
mind as safety programs continue to be developed, including current and
future rulemakings (see, e.g., 88 FR 74107 and 89 FR 20605).
FTA declines to change the heading from ``Inspections'' to ``Risk-
based Inspections'' in order to recognize other types of inspections
that may be appropriate for oversight, such as CAP verification
inspections, field inspections for audits, and others. FTA notes that
SSO program standards should document or incorporate by reference risk-
based inspection processes.
FTA agrees with the comment that risk-based inspections should
follow the principles of SMS. FTA expects risk-based inspection
activities to synchronize and be built into an RTA's existing SMS
activities. This information will be considered as a topic for FTA
guidance and workshops. FTA has determined it is unnecessary to revisit
the definition of ``risk-based inspections,'' ``SMS,'' or ``safety risk
management'' in this section of the regulation.
The importance of cooperation between the SSOA and RTAs with
respect to facility and location access will be defined in the SSO
program standard and, as required at Sec. 674.27(a)(3), the RTA is
provided the opportunity to comment on the SSO program standard through
the comment disposition process.
FTA appreciates the several comments received related to facility
access and inspection activities and agrees that these inspections are
designed to improve a rail transit agency's safety. Actions taken by
the SSOA in response to RTA non-compliance are not prescribed by this
rule and such actions will be determined by the SSOA. As a matter of
defining when or how the RTA will grant access to the SSOA for
inspection, this detail shall be developed by the SSOA in concert with
what is appropriate for each rail transit agency and memorialized in
the SSO program standard or related procedure. In response to the
commenter that suggested FTA add language requiring RTAs to grant SSOA
personnel access for inspections, FTA notes this is included in the
regulation and referenced as ``unannounced'' inspections.
FTA recognizes that each RTA has developed track right-of-way
access protocols for their systems to ensure the safety of personnel
and transit operations. SSOA and FTA officials must adhere to the rail
transit agency's access protocols, including radio practices and
specialized training as determined by the rail transit agency. FTA will
address access restrictions faced specifically by FTA officials on a
case-by-case basis. FTA will not issue citations directly to an RTA if
violations are found while FTA officials are on-site. However, FTA
shall enforce authority granted in 49 U.S.C. 5329 and 49 CFR part 670
when appropriate.
10. Section 674.27(a)(13)--Vehicle Maintenance and Testing
Comments: Four SSOAs, two RTAs, one contractor, and the NTSB
commented on the proposed requirements of Sec. 674.27(a)(13) related
to vehicle maintenance and testing requirements. Two SSOA commenters
and one RTA commenter sought clarification on who is being required to
perform the periodic testing of rail transit vehicle braking systems,
the RTA or the SSOA. Two RTA commenters expressed serious concerns if
the new requirements mean that the SSOA will direct the RTA to
undertake a new vehicle maintenance or brake testing regime or change
the frequency of its testing instead of following manufacturer
recommendations and established RTA procedure (unless or until the need
for such changes is demonstrated through the agency's own testing or
the oversight process). One commenter requested that FTA consider
developing additional guidance to support SSOA compliance with this new
requirement, issuing a Safety Advisory that addresses the NTSB
recommendation R-17-04 and providing additional detail to support RTA
and SSOA compliance. Further, the contractor suggested the proposed
requirement appears to go beyond rail vehicle braking system testing to
address the entire RTA vehicle maintenance program. Two SSOA commenters
recommended against FTA establishing vehicle maintenance inspections as
a distinct program area for the SSOA's program standard. Both SSOA
commenters recommended allowing the SSOA the flexibility to determine
how often and to what depth it reviews these aspects of the RTAs it
oversees. One of these SSOA commenters recommended that FTA remove this
proposed requirement from the SSO program standard and instead allow
SSOAs to address this issue through the risk-based inspections program
because of the burden associated with conducting such inspections.
The NTSB urged FTA to develop minimum brake system test and
inspection criteria and require SSOAs to perform rail transit vehicle
brake system tests and inspections.
FTA Response: To clarify, the rail vehicle brake system maintenance
and testing program is established and implemented by the RTA, not the
SSOA. It is the SSOA's responsibility to oversee that the RTA brake
system maintenance and testing program is effectively established and
implemented as written.
FTA appreciates the suggestion to develop guidance or issue a
Safety Advisory to better inform SSOAs and RTAs of the scope and
expectations for this new requirement. FTA will take this suggestion
under consideration.
This requirement does not change oversight responsibilities but
specifies that RTAs are required to perform periodic brake system
testing and maintenance activities. It is the SSOA's purview, now as it
has been in the past, to verify that the RTA is implementing these
activities. It is not the SSOA's responsibility to perform the brake
system testing. Further, FTA notes that SSOAs may incorporate vehicle
brake system maintenance into their risk-based inspection program.
Regarding NTSB's suggestion that FTA provide minimum inspection
standards for braking system maintenance and testing, this is outside
the scope of this regulation, but FTA will consider this suggestion in
future action.
11. Section 674.27(a)(14)--Data Collection
Comments: FTA received comments from two SSOAs, two RTAs, and one
individual in response to the proposed requirements at Sec.
674.27(a)(14). One SSOA commenter recommended against
[[Page 83970]]
FTA establishing data collection as a distinct program area for the
SSOA's SSO program standard and asserted the SSOA should be allowed the
flexibility to determine how often and to what depth it reviews these
aspects of the RTAs it oversees. One RTA requested that FTA add
language to Sec. 674.27(a)(14) that specifies that data collection
policies and procedures will be developed in consultation with the RTA.
One individual commenter recommended that SSOAs should be allowed to
collect data from RTAs with safeguards to protect personal information
and rules similar to FRA's 49 CFR part 225. One SSOA commenter asked
FTA if data access requirements should be included in the SSO program
standard with consideration for cyber security precautions. One RTA
commenter recommended revisions to the proposed requirement, suggesting
the SSO program standard define how the SSOA will use RTA data to
support the SSOA's oversight of the RTA's safety risk management
activities.
FTA Response: The regulation does not require any particular data
collection. Instead, the regulation requires ``policies and procedures
for collecting and reviewing data that the RTA uses when identifying
hazards and assessing safety risk''. The regulation does not detail
``how'' (scaling, frequency, depth) the SSOA is to conduct these
activities. This will be left to the SSOA to determine and memorialize
in policies and procedures as applicable.
FTA acknowledges the importance of cooperation between the SSOA and
RTAs with respect to data sharing and access. This practice will be
defined in the SSO program standard and, as required in Sec.
674.27(a)(3), the RTA is provided the opportunity to comment on the SSO
program standard through the comment disposition process.
FTA agrees the protection of sensitive SSOA and RTA information and
employee personal information is important. Section 674.23(b) provides
protections for SSOA and RTA security-sensitive information. FTA
expects SSOAs and RTAs to follow and apply existing laws that protect
personal information for employees and contractors.
FTA agrees with the commenter that suggested the SSOA should define
how the SSOA will use RTA data to support the SSOA's oversight
activities. FTA has added the following language, shown italicized, to
the final rule to address this comment: ``The program standard must
include policies and procedures for collecting and reviewing data that
the RTA uses when identifying hazards and assessing safety risk and
explain how the SSOA uses collected data to support oversight of the
RTA's safety risk management process.''
FTA recognizes data access and cyber security practices will be
different for each SSOA and respective RTAs. The regulation purposely
does not specify nor prescribe methods for data sharing and cyber
security. Each SSOA and respective RTA are to define policies and
practices that work amongst the agencies for ensuring secure data
access and sharing.
J. Section 674.29--Public Transportation Agency Safety Plans: General
Requirements
Comments: Two SSOA commenters expressed confusion regarding the
language at Sec. 674.29 related to the National Safety Plan. Both
commenters requested clarification on what elements within the National
Safety Plan require consistency with the RTA's ASP. Both SSOA
commenters also requested clarification on the removal of subsection
(b), which is in the 2016 rule.
FTA Response: As clarified in section E.1 above, the National
Safety Plan presents (1) safety performance criteria for all recipients
that must develop ASPs under 49 CFR part 673, including safety
performance measures related to the safety risk reduction program, and
(2) voluntary minimum safety standards and recommended practices to
support mitigation of safety risk and to improve safety performance.
The National Safety Plan does not establish a ceiling related to a
State's SSO program requirements and the standards and recommended
practices presented in Chapter III of the National Safety Plan are
voluntary in nature. In terms of requirements defined in the National
Safety Plan, FTA notes that Chapter II of the National Safety Plan
outlines the safety performance measures required of all agencies
subject to the PTASP regulation for which each RTA must set safety
performance targets and document them in their ASP. With respect to the
removal of subsection (b), FTA notes that because the 2016 version of
part 674 was published prior to part 673, FTA provided a list of the
expected PTASP elements in subsection (b) as an interim measure to
guide SSOAs. With the publication of part 673 in 2018, the list is no
longer necessary.
K. Section 674.31--Triennial Audits: General Requirements
Comments: FTA received comments from two SSOAs and one RTA related
to the requirements for triennial audits proposed at Sec. 674.31. Two
SSOA commenters recommended FTA add language to this section regarding
the SSOA and RTA agreeing to schedule ongoing audits. One SSOA
commenter requested guidance to support the SSOA's analysis of the
effectiveness of an RTA's ASP. The SSOA commenter also asserted that it
is the RTA's job to monitor effectiveness and it is the SSOAs job to
monitor compliance. One SSOA commenter also asked if FTA is defining
requirements for what should be included in the annual audit report in
situations where an SSOA conducts triennial audits in an ongoing
fashion over the three-year period.
An SSOA commenter and an RTA commenter requested clarifications
related to the requirement for the SSOA to allow the RTA to comment on
the findings and recommendations in the report. The RTA recommended
that FTA require the SSOA to provide written response to the RTA's
comments. The SSOA commenter questioned whether the RTA could comment
on the audit report or only on the findings and recommendations within
the report.
FTA Response: This section omits language included in Sec.
674.27(a)(8) regarding the SSOA and RTA ``agreeing'' to conduct an on-
going rather than an audit once every three years as repetitious and
notes the Sec. 674.31 language does not conflict with Sec.
674.27(a)(8). Further, FTA expects SSOAs and RTAs to cooperate on the
scheduling of the SSOA's triennial audit while recognizing the SSOA is
responsible for conducting triennial audits in compliance with part 674
and as specified in the SSO program standard.
In response to the commenter seeking guidance for analysis of the
effectiveness of an RTA's ASP, given the diversity of SSO programs, SSO
program standards, and ASPs, this language is purposely not
prescriptive. The SSOA shall design a triennial audit program so that
it complies with the regulation and examines the RTA's implementation
of its ASP to identify corrections or improvements.
As detailed in the Sec. 674.31 language, the audit report shall
include the following: (1) analysis of the effectiveness of the RTA's
efforts to implement the ASP; (2) findings and recommendations
resulting from this analysis; and (3) recommendations for improvement
and/or a corrective action plan(s), if necessary. At a minimum, the
SSOA shall issue provisional triennial audit reports annually if it is
auditing on an ongoing basis.
FTA acknowledges the importance of outlining and administering a
process
[[Page 83971]]
for RTAs to comment on the SSOA triennial audit report, findings, and
recommendations. RTA comments may be made to both the report language
and the resulting findings and recommendations. RTA comments are
expected to be resolved through formal or informal communications
between the agencies. This regulatory language is purposely not
prescriptive, allowing the SSOA to include in the SSO program standard
a review and comment process for collaborating with each audited RTA.
An RTA may identify issues with the SSO program standard, including the
comment resolution practice for triennial audits, per Sec.
674.27(a)(3).
L. Section 674.33--Safety Event Notifications
1. General
Comments: FTA received comments from seven commenters regarding
FTA's proposed notification criteria at Sec. 674.33, including one
SSOA, four RTAs, one industry association, and one anonymous commenter.
One RTA commenter recommended that FTA eliminate the requirement for
RTAs to notify FTA directly of safety events, asserting that ideally
RTAs would only have one set of reporting requirements and one entity
to whom they report.
One RTA commenter and one industry association commenter
recommended FTA extend the two-hour notification requirement to provide
RTAs with more time to make the required notification to the SSOA and
FTA. The RTA commenter recommended extending the timeframe to at least
four hours to provide the RTA with sufficient time for an RTA
investigator to arrive on the scene and assess the situation. The
industry association commenter recommended FTA extend the notification
window to four or six hours after the event occurs. The commenter noted
that SSOAs rarely dispatch to the scene and that the notification
timeframe would make sense if the SSOAs would commit to being on-site
within two hours of the event's occurrence. An individual commenter
suggested that the two-hour requirement did not ensure timely
notifications and recommended that FTA require RTAs to notify the FTA
and the SSOA as soon as possible as opposed to two hours so FTA and the
SSOA can evaluate the response needed.
One RTA commenter and one SSOA commenter expressed concern at the
potential burden associated with changes in notification criteria. The
RTA commented that the number of events requiring notification may
increase to near the levels required under part 659 and increase agency
burden. One SSOA commenter noted that by using the same injury
definition as the NTD, which is based on individuals receiving
immediate medical transport away from the scene, the number of events
requiring SSOA and FTA two-hour notification may increase.
One RTA commenter requested that FTA provide a grace period for the
industry to address the criteria changes through the necessary updates
to policies, procedures (across multiple departments), and
intergovernmental agreements/contracts, and to provide time to execute
configuration changes to internal databases and other tools used to
track and manage event records, such as computer-aided dispatch (CAD)
systems. The commenter also recommended that FTA work to develop a
single comprehensive safety and security glossary.
FTA Response: FTA is authorized to oversee and, when necessary,
investigate rail transit agency safety events. To uphold this authority
and activate investigations, FTA must be informed of events as they
occur.
FTA declines to lengthen the minimum notification timeframe as it
ensures that FTA and SSOAs receive timely information upon which they
may base their decisions regarding response. RTAs should be able to
easily determine if a safety event meets the notification criteria
defined at Sec. 674.33. FTA declines to shorten the notification
timeframe from two-hours to ``as soon as possible,'' as the change
would fail to establish a defined expectation for notification
timelines.
As to whether the reporting criteria may result in an increase in
notifications and burden to reporting agencies, FTA expects the revised
criteria will simplify and ease the burden on reporting agencies in
comparison to past regulation notification requirements. For example,
the elimination of the ``serious injury'' criteria in the previous
regulation will eliminate the need to assess the condition of injured
passengers before recognizing when and what meets reporting criteria
and therefore lessen the burden of safety event notifications as
compared to the previous rule.
FTA recognizes that notifications will likely increase due to the
definition of ``injury'' to include ``harm to persons as a result of an
event that requires immediate medical attention away from the scene.''
FTA revised this term and definition for several reasons, including to
clarify reporting criteria and lessen the burden of reportable event
notifications as previously mentioned. FTA is aware the reportable
events may increase with this revised definition, and this has been
factored into workload estimates.
FTA agrees that changes to terms and definitions in the regulation
language have a broad impact and will need a grace period for SSOAs and
RTAs to realign policies and practices. FTA designates January 1, 2025,
as the effective date for the final rule. This date allows SSOAs and
RTAs time to modify processes and inform employees and contractors.
Further, this date aligns with the launch of the 2025 NTD reporting
year and the associated NTD Safety & Security Policy Manual. FTA
appreciates the comment regarding a comprehensive glossary and will
take this recommendation into consideration for future data management
efforts.
2. Notification Criteria
Two RTA commenters, one SSOA commenter, and one industry
association commenter requested confirmation regarding their
understanding of the proposed notification criteria and associated
requirements or suggested changes to the proposed criteria.
An RTA commenter asked about the collision damage threshold and
requested confirmation that a rail transit vehicle collision occurring
at a grade crossing or intersection would no longer be reportable to
FTA and SSOA within two hours unless the rail transit vehicle suffered
disabling damage regardless of the damage suffered by the privately
operated vehicle. Similarly, an SSOA commenter requested confirmation
that collisions that result in disabling damage to a privately owned
vehicle but that do not result in a fatality, injury, or disabling
damage to the rail transit vehicle do not require two-hour notification
under the proposed thresholds.
An SSOA commenter asked for confirmation that under the proposed
criteria, notification is required for two or more injuries except for
collisions which require notification if there is one or more injury.
An industry association commenter recommended changing the collision
injury criteria from one or more to two or more, asserting the proposed
criteria would cause confusion and potentially misreporting. An SSOA
commenter asked for FTA to confirm that ``serious injury'' is no longer
relevant for purposes of safety event notifications as required by the
proposed criteria. An RTA commenter asked FTA to confirm if the
notification of safety events includes fatalities and injuries
resulting from illness and/or
[[Page 83972]]
other natural causes and whether notifications include criminal
assaults that are not related to a collision with a rail transit
vehicle.
An SSOA asked for confirmation from FTA regarding the notification
requirement when a single safety event meets more than one of the
notification criteria defined in Sec. 674.33.
FTA Response: Under the revised regulation, a rail transit vehicle
collision occurring at a grade crossing or intersection with a
privately owned vehicle requires notification if the rail transit
vehicle suffers from disabling damage, regardless of the damage
suffered by the privately owned vehicle. A collision between a rail
transit vehicle and a privately owned vehicle which results in
disabling damage to only the privately owned vehicle, yet no fatalities
or injuries, does not require notification.
There is no longer a distinct definition for ``serious injury.''
Injuries and fatalities resulting from illness or natural causes do not
trigger the two-hour notification requirements of Sec. 674.33.
Further, injuries or fatalities from criminal assaults and homicides do
not trigger the two-hour notification requirements of Sec. 674.33,
even if the homicide or assault involved a collision with a rail
transit vehicle. FTA notes the final rule does not preclude an SSOA
from establishing notification requirements in addition to those
established at Sec. 674.33.
In circumstances where a single safety event meets more than one
reporting criteria, the notification should share all the reporting
criteria met, given the information available at the time of
notification. For instance, if is the RTA knows at the time the
notification is made that a collision between two rail transit vehicles
resulted in a derailment and three injuries, all this information is
expected to be shared with the SSOA and FTA. All three of these
consequences meet the two-hour notification threshold and must be
communicated.
A safety event with two or more injuries is reportable and a rail
transit vehicle collision that results in one or more injuries (instead
of two or more) is also reportable. A commenter requested the latter
situation match the two or more injuries threshold for uniformity.
However, FTA is interested in any rail transit vehicle collisions
resulting in injuries. With the injuries metric alone, setting the
threshold to two or more will eliminate isolated safety events
resulting in injuries, like slips and falls.
M. Section 674.35--Investigations
Comments: One SSOA provided four unique comments. The SSOA
commenter requested that FTA revise the language at Sec. 674.35(b) to
reiterate that SSOAs can give authority to perform investigations to an
RTA because the rule does not explicitly state it. Further, the
commenter disagreed with the word ``coordinate'' when describing
situations where the SSOA is investigating. The commenter asked FTA to
clarify if the language at Sec. 674.35(c) requires an SSOA to issue a
separate investigation report from the adopted RTA investigation report
and asked FTA to clarify how the review must be conducted. The
commenter also asked for clarification on the PTSCTP requirements for
investigators, including SSOA investigators and RTA investigators
conducting investigations on behalf of the SSOA. Finally, the commenter
asked if the impact of the requirements of Sec. 674.35 were included
in the regulation's cost estimates.
FTA Response: FTA first notes that FTA proposed no substantive
changes to the 2016 version of Sec. 674.35. When an RTA investigates
safety events that meet the criteria of Sec. 674.33, the RTA must
conduct these investigations in accordance with the SSO program
standard and any subsequent procedure developed or adopted by the SSOA.
Any issues or concerns identified with the SSOA investigation practices
and RTA roles and responsibilities may be shared during the SSO program
standard comment disposition process per Sec. 674.27(a)(3).
FTA expects the SSOA to document the adoption of an RTA's
investigation report in a manner that works for both agencies and
satisfies the requirements of Sec. 674.35.
Stakeholders interested in training requirements for investigators
should review part 672 for more information. Further, nothing precludes
the SSOA from establishing unique requirements for SSOA and RTA
investigators for technical experts and subject matter experts.
As to the impact of these requirements to cost estimates, FTA does
include activities associated with Sec. 674.35 in the regulation cost
estimate and notes again this is not a new requirement.
N. Section 674.37--Corrective Action Plans
Comments: FTA received comments from one SSOA and three RTAs
regarding the requirements in the proposed Sec. 674.37. Two RTA
commenters expressed concern at the inclusion of findings of non-
compliance from internal safety reviews in the list of items for which
the SSOA must require the development of a CAP. One RTA commenter asked
FTA to clarify if it is requiring the SSOA to approve CAPs from
internal safety reviews and conduct spot checks on the implementation
and effectiveness of the internal safety review CAPs. Further, the
commenter contended that this would be inappropriate for RTA internal
reviews and would slow down the process of developing and implementing
CAPs. The RTA further asserted that the SSOA triennial audit cycle is
the appropriate venue to review CAPs related to an RTA's internal
safety reviews. Another RTA commenter asserted that requiring the
development of a CAP for findings of non-compliance from internal
safety reviews is a significant expansion to the scope of CAPs. The RTA
commenter suggested that internal safety review CAP development and
monitoring responsibility rests with the RTA and these processes are
managed independently from SSOA oversight activities. Further, the RTA
commenter expressed concern that this requirement focuses more on
compliance and less on a scalable, performance-driven methodology, and
that it could have a negative impact on RTA safety culture. The RTA
commenter also recommended FTA use the term ``non-conformance'' instead
of ``non-compliance'' because the latter is potentially misleading.
One SSOA commenter noted Sec. 674.37(a)(2) requires CAPs to
address findings of non-compliance from safety reviews and inspections
performed by the SSOA but does not use the word ``audit.'' The
commenter also recommended that CAPs should also address longer-term
monitoring of the corrective actions. Finally, the RTA commenter
expressed concern about use of the word ``order'' in Sec. 674.37(d)
and recommended that SSOAs use wording within their SSOA's authority to
outline how an RTA must develop and carryout a CAP.
An SSOA commenter recommended that the rule should clearly outline
how the Administrator will conduct independent investigations of any
safety events and under what general circumstances they would review an
SSOA's or RTA's findings of causations of a safety event. An RTA
commenter noted that Sec. 674.37(d) requires the SSOA to evaluate
whether FTA investigation findings require a CAP by the RTA. The
commenter suggested that if FTA recommendations must be considered for
determining CAPs, then other sources should be as well, such as
[[Page 83973]]
recommendations from the Safety Committee.
FTA Response: Except for subsection (a), which outlines when an
SSOA must require the RTA to develop a CAP, the language in this
section is identical to the 2016 version of the rule. One of the items
in subsection (a) is, ``Results from investigations, in which the RTA
or SSOA determined that causal or contributing factors require
corrective action.'' SSOA oversight does not distinguish between CAPs
developed to address issues identified through RTA internal processes
as opposed to SSOA processes. The SSOA continues, as in the past, to
have the authority to require the development of, review, approve, and
monitor CAPs to address a deficiency identified from activities
described in the regulation and the SSO program standard, regardless of
whether the source is RTA or SSOA reviews. Any conflicts in CAPs should
follow the documented conflict resolution process. Further, the RTA may
raise concerns with or make suggestions to revise the SSOA CAP
requirements and process upon review of the SSO program standard as
described in Sec. 674.27(a)(3).
FTA understands an SSOA will use the triennial audit as a forum to
verify an RTA's internal audit program is being implemented in
accordance with the ASP. Recommendations for improvements and CAPs, if
necessary, will be issued out of triennial audits per Sec. 674.31.
FTA recognizes a concern with terminology, particularly the use of
``non-compliance'' instead of ``conformance'' or ``non-conformance'' as
related to internal safety reviews. For purpose here, ``non-
compliance'' refers to instances where the SSOA identifies areas of
non-conformance with processes outlined in the ASP.
With respect to the assertion that a focus on compliance-based
activities may degrade an RTA's safety culture, the application of the
Safety Management System for rail transit systems is focused on safety
performance to support agency safety improvements and risk reduction.
The implementation of SMS does not negate the usefulness of compliance
focused activities. An effective SMS will incorporate compliance-based
programs and support overall risk management to strengthen the agency's
safety culture. CAPs may be generated, as needed, from performance-
based and compliance-based activities.
CAPs may be generated from audits, safety reviews, and inspections.
The list in Sec. 674.37(a) represents a minimum and is not exhaustive.
FTA appreciates the comment to support the monitoring of longer-
term CAPs implementation. The regulation does not distinguish the
length of time for monitoring of CAPs but is focused on the progress to
carry out the CAP to completion. As written, the regulation includes
the monitoring of longer-term CAPs.
As for the concern with the use of the phrase ``the SSOA must order
the RTA to develop and carry out a CAP,'' the term ``order'' is a
synonym used in place of the word ``require'' and is in the 2016
version of the rule.
FTA acknowledges the suggestion to outline how FTA may conduct an
investigation and separately the circumstances for occasions when FTA
may conduct an independent review of safety event causations and
findings revealed through SSOA and RTA investigations. FTA will
consider the suggestion on FTA safety event investigation practices
while developing future guidance and workshops for training and sharing
information with SSOAs and RTAs. FTA may review safety event
investigations and findings of causations at any time per Sec.
674.33(e).
As to whether the regulation should include FTA as an entity that
may conduct investigations which may result in CAPs for the SSOA or
RTA, FTA has the statutory authority under 49 U.S.C. 5329 to perform
independent investigations to determine causal and contributing factors
as stated in Sec. 674.35(e). Out of FTA's investigations, like other
investigations, findings may necessitate the development of CAPs.
As for the recommendation to incorporate in the regulation,
language that considers recommendations from other sources, such as the
Safety Committee, to be considered for CAP development, FTA again notes
the list in Sec. 674.37(a) is a minimum and is not exhaustive. The
SSOA may require the development of a CAP from investigations conducted
by the RTA and SSOA, which includes the review of hazards for causal
and contributing factors. Hazards may be identified by any number of
sources within an SSOA and RTA, such as the Safety Committee.
O. Section 674.39--State Safety Oversight Agency Annual Reporting to
FTA
Comments: FTA received comments from two SSOAs and one industry
association regarding the annual reporting requirements of the proposed
Sec. 674.39. Two SSOA commenters recommended that FTA redesign SSOR so
that it is organized according to the subsections of Sec. 674.39. One
industry association commenter recommended that FTA remove requirements
associated with technical training plans (TTP) from 49 CFR part 672 and
incorporate them into this rule. The commenter asserted that since TTPs
are associated with SSOAs, the related requirements belong in 49 CFR
part 674. The industry association commenter also requested
clarification on the ``publicly available report'' required under Sec.
674.39(a)(3) and specifically requested clarification to differentiate
between the safety status report that the SSOA is required to send to
the Governor, FTA Administrator, and RTA board of directors and the
annual reporting submission that the SSOA makes through the SSOA and
clarify the expected level of effort for this requirement. One SSOA
commenter asked for clarification from FTA if it requires the publicly
available report required at Sec. 674.39(a)(3) to include causal
factors of events in totality or if trending sufficient.
One industry association commenter recommended against the
requirement for SSOAs to submit final investigation reports to FTA,
asserting this requirement would be burdensome. The commenter also
questioned the usefulness of such reports in supporting FTA analyses.
One SSOA commenter asked for clarification on the certification
requirement at Sec. 674.39(a)(8) and confirmation on whether the
requirement is for submission of a self-certification or the submission
of a certification from FTA that the SSOA is compliant with part 674.
FTA Response: FTA appreciates the suggestions for improving the
SSOR and encourages SSOAs to provide feedback to their assigned FTA PM
regarding suggested enhancements to the SSOR. Further, FTA notes that
the SSOR data collection forms are currently designed to meet all the
annual reporting submission requirements of part 674. However, to
support the most efficient and accurate collection of Annual Reporting
data, SSOR uses categories and collection sequencing that may vary from
the regulatory text organization while ensuring comprehensive
collection of required data.
FTA recognizes the comment to incorporate training requirements
currently found in 49 CFR part 672 into the revised 49 CFR part 674.
However, FTA notes that 49 CFR part 672 does include SSOA-specific
requirements and disagrees that removing TTP-related requirements from
part 672 is advantageous for the industry.
The ``publicly available report'' required under Sec.
674.39(a)(3)--a requirement since 2016--refers to the
[[Page 83974]]
safety status report the SSOA is required to send to the Governor, FTA
Administrator, and RTA board of directors. The language at Sec.
674.39(a)(3) does not establish any new submission requirement that was
not already in place under existing reporting requirements and
therefore confirms that no additional level of effort is required to
address the requirements of Sec. 674.39(a)(3) in this final rule. FTA
has not established specific requirements for the details of the report
required at Sec. 674.39(a)(3) beyond the elements identified in the
rule and offers flexibility to the SSOA to determine how it may best
present ``causal factors of safety events identified through
investigation,'' be it trending or other methods.
SSOAs are already required to submit final investigation reports to
FTA through SSOR and Sec. 674.39(a)(4) does not establish any new
programmatic requirement or new burden. Further, final investigation
reports submitted by SSOAs have been instrumental in FTA safety risk
assessments and other safety analyses routinely performed by FTA. FTA
confirms that Sec. 674.39(a)(8) requires an SSOA to submit a
certification attesting that the SSOA has complied with the
requirements of 49 CFR part 674. This is not a certification issued by
FTA.
P. Section 674.41--Conflicts of Interest
Comments: Two labor union commenters, one SSOA commenter, and one
industry association submitted comments related to the conflicts of
interest provisions proposed at Sec. 674.41. Two labor union
commenters submitted a recommendation that FTA add a requirement that
explicitly prohibits an SSOA from including, as executive or governing
personnel, any appointees from a political office also responsible for
appointing executive or governing personnel to any transit provider
overseen by the SSOA.
One industry association commenter voiced concern that some former
employees of RTAs now work for the SSOA that oversees their past
employer and now oversee many of the areas of their previous
employment. The commenter recommended that FTA should require a
``cooling-off period'' of at least 12 months between when an employee
leaves or retires from an RTA and then oversees the exact same area in
which they previously worked in at an RTA to preserve integrity and to
avoid conflicts of interest.
One SSOA commenter expressed concerns about FTA's conflict of
interest provisions at Sec. 674.41(c) that preventing a contractor
from providing services to both an RTA and the SSOA that oversees the
RTA, unless granted an exemption by FTA. The SSOA commenter noted that
their SSOA struggles to compete with an overseen RTA for contractors
because the RTA is large and can provide more lucrative business
opportunities for the contractors, limiting the availability of
contractor expertise for the SSOA. The commenter recommended that FTA
revise the proposed Sec. 674.41(c) to allow RTAs and SSOAs to
determine appropriate mitigations of conflicts of interest, such as
organizational firewalls, so that SSOAs can work with the contractors
of their choice, rather than whatever contractors remain following RTA
contracting.
FTA Response: Regarding the recommendation to add a provision that
would prohibit an SSOA from including, as executive or governing
personnel, any appointees from a political office also responsible for
appointing executive or governing personnel to any transit provider
overseen by the SSOA, FTA believes a prescriptive ban is not necessary
at this time, as FTA believes Sec. Sec. 674.11 and 674.13 of the
regulation provide sufficient financial and legal independence between
an SSOA and the RTAs it oversees.
Regarding the recommendation for cooling-off period, although
Federal post-employment laws establish post-employment restrictions on
former Federal employees (18 U.S.C. 207), these restrictions do not
extend to local employees of rail transit agencies and SSOAs who are
more appropriately covered under State employment laws. Former
employees of an RTA transferring to work for an SSOA should also be
aware that employment contracts may contain post-employment
restrictions.
Regarding the proposal by the SSOA who sought the authority to
determine whether a conflict of interest existed between itself and the
RTAs it oversees in the hiring of support contractors, FTA believes
that the conflict of interest provision at Sec. 674.41(c) that
prevents an SSOA from hiring a contractor that also provides services
to an RTA overseen by the same SSOA is essential to maintain the
independence between the entity preparing and implementing the PTASP
and the SSOA overseeing that entity. FTA notes that Sec. 674.41(c)
includes an opportunity for an SSOA to petition FTA for a waiver from
this prohibition if. FTA is persuaded that any potential conflict of
interest has been adequately mitigated. Because the current prohibition
is an essential safeguard, FTA declines to revise the provision. FTA
believes a sufficient number of contractors with qualified personnel
available exist regardless of compensation competition; moreover, FTA
has not received a request to waive this provision during the past
eight years when the waiver provision has been available.
Q. Regulatory Burden
Comments: Two SSOA commenters submitted comments related to the
burden estimates published in the NPRM. One SSOA commenter noted that
oversight requirements related to engineering and construction phases,
RTA compliance with the PTSCTP, vehicle maintenance and testing, data
collection, and annual reporting may increase the regulatory burden.
Another SSOA commenter requested clarification if FTA had
quantified the impacts of the proposed rule on RTAs and SSOAs. The same
SSOA commenter asked how FTA calculated the estimated number of events
used to support burden estimates, asking for clarification on the
occupation groups, codes, and titles that were used in conducting FTA's
burden analysis.
FTA Response: Some SSOAs have been providing oversight of rail
fixed guideway public transportation systems in engineering or
construction phases when they were directed to do so in section 20021
of MAP-21 (Pub. L. 112-141) and this final rule does not establish an
additional responsibility. Further, where there are new requirements
related to RTA compliance with the PTSCTP, vehicle maintenance and
testing, data collection, and annual reporting, FTA has analyzed those
costs to SSOAs and RTAs.
In the NPRM, FTA estimated the economic impacts of the proposed
rule on the industry as described in ``Regulatory Analyses and
Notices.'' Table 4 and the accompanying discussion identify the Bureau
of Labor Statistics occupational categories and codes used. To quantify
the impact of the notification criteria change on RTAs and SSOAs, FTA
analyzed safety event data reported to the NTD from 2017 to 2021 and
identified events that would become reportable under the new criteria.
R. Other Safety Topics
Comments: FTA received comments from the NTSB related to safety
concerns affecting the transit industry, including fatigue, fitness for
duty, and roadway worker protection. The NTSB recommended that FTA
establish roadway worker protection (RWP) rules including requirements
for job briefings; establish a national inspection program
[[Page 83975]]
that specifically includes roadway worker activities; develop a work
scheduling program for RTAs that incorporates fatigue science, provides
for the management of personnel fatigue risks, and is implemented
through the state safety oversight program; establish hours-of-service
regulations that set limits on hours of service, provide predictable
work and rest schedules, and consider circadian rhythms and human sleep
and rest requirements; identify the necessary training and
certification needs for work schedulers in the rail transit industry
and require the transit agencies to provide additional training or
certification for their work schedulers; and require rail transit
employees who develop work schedules to complete initial and recurrent
training based on current fatigue science to identify and mitigate work
schedule risks that contribute to operator fatigue.
FTA Response: FTA appreciates the comments received from the NTSB
and notes that FTA is currently engaged in a rulemaking addressing rail
transit roadway worker protection (RIN 2132-AB41). On March 25, 2024,
FTA published a notice of proposed rulemaking that would establish
minimum safety standards for rail transit RWP to ensure the safe
operation of public transportation systems and to prevent accidents,
incidents, fatalities, and injuries to transit workers who may access
the roadway in the performance of work (89 FR 20605). FTA is currently
reviewing public comments received in response to the publication of
the proposed rule.
On October 30, 2023, FTA published an advanced notice of proposed
rulemaking (ANPRM) addressing transit worker hours of service and
fatigue safety risk management (88 FR 74107). FTA is considering
proposing minimum safety standards to provide protections for transit
workers to obtain adequate rest thereby reducing the risk of fatigue-
related safety incidents and sought public input in two areas: hours of
service; and fatigue risk management programs. FTA is reviewing
collected information to better understand current industry practices,
priorities, requirements, and the costs and benefits of Federal
requirements to assist FTA as it considers potential regulatory
requirements.
III. Section-by-Section Analysis
Subpart A--General Provisions
674.1--Purpose
This section explains that the purpose of this regulation is to
carry out the mandate of 49 U.S.C. 5329 for States to perform oversight
of rail fixed guideway public transportation systems within their
jurisdictions. This represents an expansion from the purpose stated in
the previous Sec. 674.1, ``this part carries out the mandate of 49
U.S.C. 5329(e).'' The removal of ``(e)'' acknowledges the additional
obligations for inspections and data collection required by SSO
Agencies in section 5329(k), as amended by the BIL, and better reflects
the connection among all elements of FTA's public transportation safety
program.
674.3--Applicability
FTA has not changed this section.
674.5--Policy
This section removes the term ``sufficient'' in subsection (a) to
eliminate subjectivity regarding the requirements for State Safety
Oversight Agency (SSOA) authorities. FTA also removes the first
sentence in subsection (b), as the availability of funding is addressed
in the existing language in Sec. 674.17(a).
674.7--Definitions
This section replaces the terms ``accident,'' ``incident,''
``occurrence,'' and ``event'' with the inclusive term ``safety event,''
which includes events such as collisions, derailments, fires, and
unintended train movements for purposes of meeting the two-hour
notification requirement in Sec. 674.33. The ``safety event''
notification requirements of Sec. 674.33 exclude criminal actions.
FTA also removes the definition of ``serious injury.'' These
revisions are consistent with changes that FTA published in the Public
Transportation Agency Safety Plans (PTASP) final rule) (89 FR 25694)
and are intended to simplify requirements related to safety event
notifications and investigations.
This section establishes new terms and definitions for
``collision,'' ``derailment,'' ``evacuation for life safety reasons,''
``fatality,'' ``injury,'' ``public transportation,'' ``rail transit
vehicle,'' ``revenue vehicle,'' and ``unintended train movement,'' and
removes the general term ``vehicle'' in recognition of these new
definitions, which will be consistent with FTA's National Transit
Database (NTD) reporting manuals and support the notification and
investigation thresholds defined in Sec. Sec. 674.33 and 674.35. FTA's
definition of ``injury'' restores the threshold under FTA's previous
part 659 regulation and is consistent with the NTD reporting manuals.
The definition of ``injury'' includes damage or harm to persons that
requires immediate medical attention away from the scene. An individual
who declines transportation away from the scene for medical attention
should not be counted as an ``injury'' for two-hour notification
purposes. This definition allows for an immediate, on scene
determination of injuries by the RTA without the need to await a formal
diagnosis or determination from an off-site medical professional.
FTA also includes a new definition for ``disabling damage'' to
support the notification and investigation thresholds. ``Disabling
damage'' is limited to damage resulting from a collision that
physically prevents a vehicle or train from operating under its own
power. Disabling damage does not include mechanical failures or other
malfunctions that may impact operations.
FTA established new terms and definitions for ``potential
consequence,'' ``safety committee,'' ``safety risk,'' and ``safety risk
mitigation'' as well as revised definitions of ``Accountable
Executive'' and ``safety risk management'' for consistency with
definitions 49 CFR part 673.
This section revises the definition of ``corrective action plan''
to help distinguish corrective action plans from safety risk
mitigations.
This section revises the definition of ``investigation'' to reflect
the replacement of the terms ``accident'' and ``incident'' with
``safety event'' as described above.
This section includes new terms and definitions for ``inspection''
and ``risk-based inspection program'' to support new SSOA requirements
mandated by the BIL.
This section revises the definition of ``Public Transportation
Agency Safety Plan'' to remove reference to the transition from the
requirements under 49 CFR part 659, the previous State Safety Oversight
regulation, to the present requirements under 49 CFR part 674. This
revision is consistent with the end of the transition period, which
occurred in early 2019, and FTA's subsequent rescission of part 659 (87
FR 6783).
This section revises the definition of ``Public Transportation
Safety Certification Training Program'' to remove reference to the
interim provisions for this program. This section also adds a new term
and definition for ``designated personnel'' to recognize individuals
subject to the Public Transportation Safety Certification Training
Program regulation (49 CFR part 672).
This section reorders the clauses in the definition of ``rail fixed
guideway public transportation system'' for clarity. This change aligns
with the
[[Page 83976]]
definition that the PTASP regulation and does not reflect a change in
FTA's implementation or interpretation.
FTA also makes a minor revision to the definition of ``State Safety
Oversight Agency'' to add a citation referencing the SSOA inspection
requirement in 49 U.S.C. 5329(k), which was added by the BIL.
674.9--[Reserved]
FTA removes and reserves this section. Previously, this section
provided requirements for the transition from 49 CFR part 659, the
previous State Safety Oversight regulation, to part 674. This removal
acknowledges the end of the transition period, which occurred in early
2019, and FTA's subsequent rescission of part 659.
Subpart B--Role of the State
674.11--State Safety Oversight Program
FTA eliminates the deadlines established for States' initial
compliance with the requirement, as all States must have an FTA-
approved SSO program for rail transit agencies in their State to be
eligible for FTA financial assistance. This initial compliance date,
which was three years after April 15, 2016, has already passed. FTA
also makes a minor technical correction to the statutory citation
regarding FTA triennial audits of SSO programs.
674.13--Designation of Oversight Agency
FTA revises the statutory citation in Sec. 674.13(a) to reflect
new statutory requirements. In Sec. 674.13(a)(5), FTA includes
inspection authorities in the list of authorities an SSOA must have,
reflecting the new requirements in 49 U.S.C. 5329(k) that SSOAs must
conduct risk-based inspections of the rail fixed guideway public
transportation systems that the SSOA oversees.
In Sec. Sec. 674.13(a)(4) and (a)(6), FTA includes a new reference
to 49 CFR part 673, Public Transportation Agency Safety Plans, which
did not exist when FTA published the current part 674 in 2016.
674.15--Designation of Oversight Agency for Multi-State System
FTA has not changed this section.
674.17--Use of Federal Financial Assistance
FTA deletes the term ``parts'' as superfluous.
674.19--Certification of a State Safety Oversight Program
FTA removes ``(e)'' from ``5329(e)'' in this section for the
reasons mentioned above and adds language in Sec. 674.19(d) to clarify
the Administrator's determination to issue a certification or a denial
of certification for an SSO program. This does not reflect a change in
FTA's application of the statutory and regulatory criteria.
674.21--Withholding of Federal Financial Assistance for Noncompliance
When FTA published its final rule in 2016, States with existing
rail fixed guideway public transportation systems were provided a
three-year transition period. Now that the transition period has
expired, FTA updates Sec. 674.21(b) to adopt FTA current practice,
which is to require a State to establish an SSO program and have that
program approved by the FTA Administrator prior to a new rail fixed
guideway public transportation system entering the engineering or
construction phase of development. FTA also replaces the word
``apportioned'' with ``authorized'' for accuracy.
674.23--Confidentiality of Information
FTA has not changed this section.
Subpart C--State Safety Oversight Agencies
674.25--Role of the State Safety Oversight Agency
In Sec. 674.25, FTA adds a new subsection (c) to explicitly
acknowledge an SSOA's authority to provide safety oversight of projects
in the engineering or construction phase of development. This parallels
the statutory language in 49 U.S.C. 5329(e)(2)(B) and clarifies FTA's
intent that SSOAs take an active oversight role during a project's pre-
revenue phases. FTA also moves from the current subsection (b) into a
new subsection (d) the requirement that SSOAs ensure that an ASP meets
the requirements of 49 U.S.C. 5329(d) and part 673, a non-substantive
change that will provide clarity and improve readability. Consequently,
FTA redesignates existing subsections 674.24(c) through (f) as
subsections (e) through (h).
In addition, FTA makes minor conforming edits in these subsections
to reflect the definitions in Sec. 674.7 as discussed above and to
remove references to 49 U.S.C. 5330, which has been repealed.
674.27--State Safety Oversight Program Standards
In Sec. 674.27, FTA adds a new paragraph (a)(3) to require an SSOA
to develop a process to address comments from an RTA regarding an SSO
program standard. This reflects industry concerns that some SSOAs do
not formally respond to RTA comments. This addition requires SSOs to
establish a process by which SSOAs will address RTA comments regarding
the SSO program standard. Because of the addition of paragraph (a)(3),
the remaining paragraphs are renumbered.
FTA expands the renumbered Sec. 674.27(a)(5) to include specific
requirements for SSOA oversight of RTA internal safety reviews.
Internal safety reviews are distinct from the existing annual review
and update requirement in 49 CFR 673.11(a)(5). Internal safety reviews
monitor the actual implementation of the ASP. However, the results of
the internal safety reviews may inform the RTA's annual ASP document
review and update process. The previous 49 CFR 659.19 included explicit
requirements for these internal safety reviews; however, part 674
removed the prescriptive requirements in Sec. 659.19 with the
expectation that they would be addressed in the PTASP final rule. The
PTASP final rule did not address internal safety reviews, prompting
some RTAs to ask whether they were no longer required by FTA, even
though SSOAs continued to require them under their SSO program
standards. To provide clarity, the language confirms the requirement
that the SSO program standard must define internal safety review
requirements, which are addressed in Sec. 673.27(d)(1)(iii). The
language establishes minimum requirements for internal safety reviews,
including the requirement that RTAs must verify the implementation of
all elements of the ASP over a three-year period, with the expectation
that RTAs will be conducting internal safety reviews on an ongoing
basis. Further, the RTA must notify the SSOA thirty days before it
conducts an internal safety review of any aspect of the rail fixed
guideway public transportation system and provide any checklists or
procedures it will use during the review. Finally, the RTA must submit
a report to the SSOA annually documenting the internal safety review
activities and the status of subsequent findings and corrective
actions.
A new Sec. 674.27(a)(6) relating to the oversight of safety risk
mitigations establishes requirements for the SSOA to define the process
it will use to oversee an RTA's development, implementation, and
monitoring of safety risk mitigations. The SSO program standard must
specify the frequency and format for how the SSOA will receive and
review information about an RTA's safety risk mitigation status and
effectiveness.
[[Page 83977]]
Although 49 CFR part 673 established specific requirements for
safety management, including the development, implementation and
monitoring of safety risk mitigations, part 674 was published prior to
part 673 and did not include specific oversight requirements related to
safety risk mitigation. Therefore, FTA is including these requirements
in part 674 to ensure that SSOAs have a documented process to oversee
the safety risk mitigation processes required of RTAs.
A new Sec. 674.27(a)(7) regarding oversight of the safety
certification training program requires an SSOA to oversee the RTA's
compliance with the Public Safety Certification Training Program
regulation (49 CFR part 672). This role was not made explicit in the
previous part 674 and this new language clarifies FTA's expectation
that SSOAs oversee RTA compliance with 49 CFR part 672 requirements.
The renumbered Sec. 674.27(a)(9) is also renamed from ``Accident
notification'' to ``Safety event notification,'' consistent with the
discussion above in Sec. 674.7, where FTA replaces the term
``accident'' with the term ``safety event'' and the conforming edits in
the renumbered Sec. 674.27(a)(10). FTA also requires the SSO program
standard to establish requirements for RTAs to notify the SSOA and FTA
of safety events to ensure that the notification requirement in Sec.
674.33 is addressed in an RTA's ASP, as the current paragraph omitted
any reference to FTA.
In the renumbered Sec. 674.27(a)(11), FTA inserts the term ``SSO''
before ``program standard'' for consistency with the rest of this
section.
FTA adds a new Sec. 674.27(a)(12), ``Inspections,'' to incorporate
the requirement that SSOAs conduct risk-based inspections of the RTAs
they oversee. On October 21, 2022, FTA issued Special Directives to
each SSOA directing them to develop and implement a risk-based
inspection program as required by the BIL. The Special Directives
require SSOAs to include policies and procedures for Risk-Based
Inspection in their SSO program standards and develop and begin
implementing their Risk-Based Inspection program by October 21, 2024.
FTA adding a new Sec. 674.27(a)(13), ``Vehicle Maintenance and
Testing,'' requiring SSOAs to amend their SSO program standard to
include a new requirement that SSOAs ensure that rail transit agencies
conduct maintenance and testing procedures of braking systems,
consistent with NTSB Recommendation R-17-004 (<a href="https://data.ntsb.gov/carol-main-public/sr-details/R-17-004">https://data.ntsb.gov/carol-main-public/sr-details/R-17-004</a>).
Finally, a new Sec. 674.27(a)(14), ``Data Collection,''
establishes specific data collection requirements for collecting data
that the RTA uses when identifying hazards and assessing safety risk.
This responds to industry feedback regarding the role of the SSOA in
overseeing safety risk management of the RTAs under their jurisdiction.
674.29--Public Transportation Agency Safety Plans: General Requirements
Section 674.29 adds a reference to 49 U.S.C. 5329(d) and 49 CFR
part 673 in subsection (a) for clarity and the removes subsection (b).
Because part 674 was published prior to part 673, FTA provided a list
of the expected ASP elements in subsection (b) as an interim measure to
guide SSOAs. With the publication of part 673 in 2018, the list is no
longer necessary. Consistent with the removal of the current subsection
(b), FTA renumbers subsection (c) as subsection (b).
674.31--Triennial Audits: General Requirements
Section 674.31 clarifies that SSOAs who elect to audit an RTA's
compliance with its ASP on an ongoing basis must issue interim audit
reports at least annually. This clarification does not reflect a change
in FTA's current implementation of this requirement.
674.33--Notifications of Safety Events
This section replaces the term ``accident'' with ``safety event.''
This replacement streamlines definitions used in requirements related
to event notification and investigation.
This section establishes specific notification criteria that
replace the Appendix in the current part 674. This replacement text
clarifies FTA's minimum requirements for two-hour notifications to FTA
and SSOAs and reflects changes to reporting thresholds suggested by
SSOAs and RTAs, who found it difficult to quickly determine the scope
of one's ``serious injuries'' as defined in the Appendix within two
hours of a safety event, specifically, injuries resulting in bone
fractures, nerve or muscle damage, injuries to internal organs, or
hospitalizations exceeding 48 hours. Additionally, FTA removes the
requirement in subsection (b) that required RTAs to notify FTA and
SSOAs of safety events triggering FRA's notification requirements under
49 CFR part 225, as notification on FRA-regulated trackage is already
reported to the USDOT and received by FTA via the National Response
Center. In subsection (b) FTA has added an exclusion to the
notification requirement for criminal actions such as assaults or
homicides.
674.35--Investigations
Section 674.35 replaces the term ``accident'' with ``safety
event,'' and clarifies that this includes any safety event that meets
one or more thresholds in Sec. 674.33. FTA also divides the
requirements in Sec. 674.35(a) into a new Sec. 674.35(a) and Sec.
674.35(b) for clarity. These changes do not reflect a change in the
implementation of the current requirements.
674.37--Corrective Action Plans
In Sec. 674.37, FTA includes a new subsection (a) and redesignates
subsections (a) through (c) as subsections (b) through (d).
The new subsection (a) clarifies the basis for the development of a
corrective action plan (CAP). The language requires the development of
a CAP to address investigations that determined causal or contributing
factors require corrective actions, findings of non-compliance from
safety reviews and inspections performed by the SSOA, or findings of
non-compliance from internal safety reviews performed by the RTA. This
language does not reflect a change in current practice.
In the renumbered Sec. 674.37(c), FTA revises language clarifying
CAP requirements to ensure alignment with Safety Management System
terminology. In the renumbered Sec. 674.37(d), FTA adds ``FTA'' as an
agency authorized to conduct investigations, reflecting FTA's authority
to investigate public transportation accidents and incidents under 49
U.S.C. 5329(f)(5), with the SSOA expected to evaluate whether the
findings or recommendations by FTA or the NTSB require a CAP by the
RTA.
[[Page 83978]]
674.39--State Safety Oversight Agency Annual Reporting to FTA
Section 674.39(a)(2) clarifies language regarding ``designated
personnel'' for consistency with the Public Transportation Safety
Certification Training Program in 49 CFR 672 and does not reflect a
change in purpose or intent.
Section 674.39(a)(3) replaces the term ``accident'' with ``safety
event,'' consistent with the explanation provided above. Section
674.39(a)(4) specifies that SSOAs must submit final investigation
reports as part of their annual reporting to FTA. This reporting is
already required through the current reporting process and this
language does not reflect a change in FTA's practice.
Section 674.39(a)(5) specifies that SSOAs must provide a summary of
the internal safety reviews conducted by RTAs during the previous 12
months and RTA progress in carrying out CAPs arising from the SSOA's
oversight of RTA ASPs and any related safety reviews. This reporting is
already required through the current reporting process and this
language does not reflect a change in FTA's practice.
674.41--Conflicts of Interest
FTA has not changed this section.
Removed--Appendix to Part 674--Notification and Reporting of Accidents,
Incidents, and Occurrences
FTA removes the table addressing the notification and reporting
requirements for accidents, incidents, and occurrences, as FTA
addresses this requirement in Sec. 674.33, Notifications of safety
events.
IV. Regulatory Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review)
Executive Order 12866 (``Regulatory Planning and Review''), as
supplemented by Executive Order 13563 (``Improving Regulation and
Regulatory Review''), directs Federal agencies to assess the benefits
and costs of regulations, to select regulatory approaches that maximize
net benefits when possible, and to consider economic, environmental,
and distributional effects. It also directs the Office of Management
and Budget (OMB) to review significant regulatory actions, including
regulations with annual economic effects of $100 million or more. OMB
has determined that the proposed rule is not significant within the
meaning of Executive Order 12866 and has not reviewed it under that
order.
Overview
The final rule, which implements amendments made by the Bipartisan
Infrastructure Law, will add requirements for state safety oversight
agencies (SSOAs) and the rail transit agencies (RTAs) they oversee. The
rule will require SSOAs to conduct risk-based inspections, oversee
safety risk mitigations, and investigate a larger number of safety
events. The rule will also require RTAs to conduct additional accident
investigations and prepare additional reports. Finally, the rule will
clarify existing requirements, update terminology, and remove interim
provisions that no longer apply.
Updates From the NPRM
The analysis for the final rule adds calculations using a discount
rate of 2 percent, following guidance in the November 2023 update to
OMB Circular A-4.\1\
---------------------------------------------------------------------------
\1\ Office of Management and Budget (2023). ``Circular No. A-
4.'' <a href="https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf</a>.
---------------------------------------------------------------------------
To give RTAs time to modify safety event notification and
investigation processes and SSOAs time to review those changes, FTA is
setting an effective date of January 1, 2025, for RTAs and SSOAs to
comply with new notification criteria. The analysis uses 2025 to 2034
as the updated ten-year analysis period for the rule.
Benefits
The final rule will lead to increased oversight of RTA safety-
related activities, although the benefits of the oversight are unknown
and unquantified in the analysis. The rule may also benefit SSOAs and
rail transit agencies by clarifying requirements and reducing costs to
ensure compliance.
---------------------------------------------------------------------------
\2\ Federal Transit Administration. August 3, 2022. ``State
Safety Oversight Contacts.'' <a href="https://www.transit.dot.gov/regulations-and-guidance/safety/state-safety-oversight-contacts">https://www.transit.dot.gov/regulations-and-guidance/safety/state-safety-oversight-contacts</a>.P>\3\ Average events calculated using FTA's State Safety
Oversight Reporting system.
---------------------------------------------------------------------------
Costs
SSOAs and RTAs will incur economic costs to meet the new oversight
and increased reporting requirements of the final rule. The 31 SSOAs in
operation as of March 1, 2024, will be required to document their
enforcement authority, adjust their SSO program standards, and to
comply with new oversight and reporting requirements beginning on
January 1, 2025. To estimate the costs of meeting the requirements, FTA
estimated the number of entities affected, the number and type of staff
involved, and the time needed for the first year and subsequent years
(Table 2).\2\
Table 2--Staff and Hours Needed for SSOAs To Meet Oversight Requirements
----------------------------------------------------------------------------------------------------------------
Requirement Staff Annual hours Total hours
----------------------------------------------------------------------------------------------------------------
SSOA documentation of enforcement authority 31 SSOA staff................... 40 1,240
(first year only).
SSOA oversight (first year)
Establish disposition process................. 31 SSOA staff................... 80 2,480
Define requirements for internal safety 31 SSOA staff................... 80 2,480
reviews.
Document oversight of safety risk mitigations. 31 SSOA staff................... 80 2,480
Document oversight of RTA training compliance. 31 SSOA staff................... 20 620
Develop risk-based inspection programs........ 62 SSOA staff (2 staff per SSOA) 160 9,920
Establish thresholds for safety event 31 SSOA staff................... 10 310
notifications.
Document data collection procedures with RTAs. 31 SSOA staff................... 20 620
SSOA oversight (later years)
Oversee safety risk mitigations............... 31 SSOA staff................... 500 15,500
Oversee RTA training compliance............... 31 SSOA staff................... 20 620
----------------------------------------------------------------------------------------------------------------
Source: FTA analysis.
Under the current thresholds for reporting safety events, RTAs had
an average of 618 reportable events per year from 2017 to 2021.\3\
Under the new thresholds, RTAs would have had an average of 811
reportable events per
[[Page 83979]]
year for an increase of 193 reports, resulting in additional reporting
costs for SSOA and RTA employees (Table 3).
Table 3--Annual Staff and Hours Needed for SSOAs and RTAs To Meet Reporting Requirements
----------------------------------------------------------------------------------------------------------------
Hours for
Requirement Staff single Total hours
activity
----------------------------------------------------------------------------------------------------------------
SSOA safety event tracking (annual)........... SSOA staff; 193 reports......... 1 193
SSOA safety event investigations (annual)
Prepare investigation reports................. SSOA safety event investigators; 22 4,246
193 reports.
Review and approve reports.................... SSOA safety event investigators; 10 1,930
193 reports.
SSOA reporting to FTA (annual)
Submit investigation reports.................. SSOA staff; 193 reports......... 5 320
Submit summary of internal safety reviews..... SSOA staff; 193 reports......... 5 320
Investigation and reporting (annual)
Conduct accident investigations............... RTA safety event investigators; 47 9,071
193 reports.
Prepare event investigation reports........... RTA safety event investigators; 30 5,790
193 reports.
Make submissions to SSOA...................... RTA safety event investigators; 12 2,316
193 reports.
----------------------------------------------------------------------------------------------------------------
Source: FTA analysis.
To estimate the value of staff time spent on the requirements, FTA
used occupational wage data from the Bureau of Labor Statistics as of
May 2021 (Table 2).\4\ For general SSOA and trail transit agency staff,
the closest occupational category is ``General and Operations
Managers'' (code 11-1021) in the ``Transit and Ground Passenger
Transportation'' industry (North American Industry Classification
System code 485000). FTA used median hourly wages as a basis for the
estimates, multiplied by 1.62 to account for employer benefits, for a
cost estimate of $95.27 per hour.\5\ For safety event investigators,
who do not have a close analogue in the occupational wage data, FTA
assumed a 25 percent wage and benefit premium for a cost estimate of
$119.09 per hour.
---------------------------------------------------------------------------
\4\ Bureau of Labor Statistics. 2024. ``May 2022 National
Occupational Employment and Wage Estimates: United States.'' <a href="https://www.bls.gov/oes/2022/may/oes_nat.htm">https://www.bls.gov/oes/2022/may/oes_nat.htm</a>.
\5\ Multiplier derived using Bureau of Labor Statistics data on
employer costs for employee compensation in December 22 (<a href="https://www.bls.gov/news.release/ecec.htm">https://www.bls.gov/news.release/ecec.htm</a>). Employer costs for state and
local government workers averaged $57.60 an hour, with $35.69 for
wages and $21.95 for benefit costs. To estimate full costs from
wages, one will use a multiplier of $57.60/$21.95, or 1.62.
Table 4--Occupational Categories and Wages Used To Value Staff Time
[$2022]
----------------------------------------------------------------------------------------------------------------
Median hourly Wage with
Staff Occupational category Code wage benefits
----------------------------------------------------------------------------------------------------------------
SSOA and RTA general staff............ General and Operations 11-1021 $59.07 $95.27
Managers.
SSOA and RTA safety event N/A..................... .............. 73.84 119.09
investigators.
----------------------------------------------------------------------------------------------------------------
Source: Bureau of Labor Statistics, May 2021 National Occupational Employment and Wage Estimates.
The requirements of the final rule have estimated costs of $9.8
million (in 2022 dollars) for the first year and annual costs of $10.7
million for later years (Table 5). The largest annual costs are for
SSOA oversight ($7.9 million) and RTA activities ($2.0 million).
Table 5--First-Year Costs and Annual Costs for Rule Requirements
[$2022]
------------------------------------------------------------------------
Requirement First-year costs Annual costs
------------------------------------------------------------------------
SSOA documentation of enforcement $118,140 ................
authority..........................
SSOA oversight...................... 9,655,277 $7,853,642
SSOA safety event tracking.......... 18,388 18,388
SSOA investigations................. 735,517 735,517
SSOA annual reporting to FTA........ 60,975 60,975
RTA investigations and reporting.... 2,045,656 2,045,656
-----------------------------------
Total........................... 12,633,954 10,714,179
------------------------------------------------------------------------
Note: Totals may not sum due to rounding.
Summary
Table 6 summarizes the economic effects of the final rule over the
first ten years of the rule (2025 to 2034) in 2022 dollars. On an
annualized basis, the rule will have net costs of $11.0 million at a 7
percent discount rate (discounted to 2024), $10.9 million at 3 percent,
and $10.9 million at 2 percent.
[[Page 83980]]
Table 6--Summary of Economic Effects, 2025-2034
[$2022, discounted to 2024]
----------------------------------------------------------------------------------------------------------------
Total
Item (undiscounted) Annualized (7%) Annualized (3%) Annualized (2%)
----------------------------------------------------------------------------------------------------------------
Benefits Costs...................... Unquantified ................. ................. .................
SSOA documentation of enforcement $118,140 $16,820 $13,446 $12,894
authority..........................
SSOA oversight.................. 80,338,058 8,093,373 8,058,697 8,050,279
SSOA safety event tracking...... 183,879 18,388 18,388 18,388
SSOA investigations............. 7,355,168 735,517 735,517 735,517
SSOA annual reporting to FTA.... 609,755 60,975 60,975 60,975
RTA investigations and reporting 20,456,560 2,045,656 2,045,656 2,045,656
---------------------------------------------------------------------------
Total costs................. 109,061,560 10,970,730 10,932,680 10,923,710
----------------------------------------------------------------------------------------------------------------
Net benefits........................ Unquantified ................. ................. .................
----------------------------------------------------------------------------------------------------------------
Note: Totals may not sum due to rounding.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.)
requires Federal agencies to assess the impact of a regulation on small
entities unless the agency determines that the regulation is not
expected to have a significant economic impact on a substantial number
of small entities.
The rule will require SSOAs and rail transit agencies to meet
additional administrative requirements. Under the Regulatory
Flexibility Act, local governments and other public-sector
organizations qualify as small entities if they serve a population of
less than 50,000. State agencies do not qualify, and no rail transit
agency serves an urbanized area with a population of less than 50,000.
FTA has therefore determined that the rule will not have a significant
effect on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
FTA has determined that this rule does not require a written
statement under the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1532) because it does not impose a Federal mandate that may result in
the expenditure of $100 million or more in any 1 year (when adjusted
annually for inflation using the base year of 1995) for either State,
local, and tribal governments in the aggregate, or by the private
sector.
Executive Order 13132 (Federalism Assessment)
Executive Order 13132 requires agencies to assure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. This action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132, and FTA determined this action will not have a substantial
direct effect or sufficient federalism implications on the States. FTA
also determined this action will not preempt any State law or
regulation or affect the States' ability to discharge traditional State
governmental functions.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities apply
to this program.
Paperwork Reduction Act
In compliance with the Paperwork Reduction Act of 1995 (PRA) (44
U.S.C. 3501 et seq.), and the White House Office of Management and
Budget's (OMB) implementing regulation at 5 CFR 1320.8(d), FTA is
seeking approval from OMB for a currently approved information
collection (OMB Control Number 2132-0558) that is associated with this
Notice of Proposed Rulemaking. The information collection (IC) was
previously approved on April 7, 2023. However, this submission includes
changes in requirements applicable to the SSO program affecting various
respondents.
National Environmental Policy Act
Federal agencies are required to adopt implementing procedures for
the National Environmental Policy Act (NEPA) that establish specific
criteria for, and identification of, three classes of actions: (1)
Those that normally require preparation of an Environmental Impact
Statement, (2) those that normally require preparation of an
Environmental Assessment, and (3) those that are categorically excluded
from further NEPA review (40 CFR 1507.3(b)). This rule qualifies for
categorical exclusions under 23 CFR 771.118(c)(4) (planning and
administrative activities that do not involve or lead directly to
construction). FTA has evaluated whether the rule will involve unusual
or extraordinary circumstances and has determined that it will not.
Executive Order 12630 (Taking of Private Property)
FTA has analyzed this rule under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights. FTA does not believe this rule affects a taking of
private property or otherwise has taking implications under Executive
Order 12630.
Executive Order 12988 (Civil Justice Reform)
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
FTA has analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. FTA
certifies that this action will not cause an environmental risk to
health or safety that might disproportionately affect children.
Executive Order 13175 (Tribal Consultation)
FTA has analyzed this rule under Executive Order 13175, and
believes that it will not have substantial direct effects on one or
more Indian Tribes; will not impose substantial direct compliance costs
on Indian Tribal
[[Page 83981]]
governments; and will not preempt Tribal laws. Therefore, a Tribal
summary impact statement is not required.
Executive Order 13211 (Energy Effects)
FTA has analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. FTA has determined that this action is not a
significant energy action under that order and is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Therefore, a Statement of Energy Effects is not required.
Executive Order 12898 (Environmental Justice)
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations) and DOT
Order 5610.2(a) (<a href="https://www.transportation.gov/transportation-policy/environmental-justice/department-transportation-order-56102a">https://www.transportation.gov/transportation-policy/environmental-justice/department-transportation-order-56102a</a>) require
DOT agencies to achieve Environmental Justice (EJ) as part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects, including interrelated social and economic effects, of their
programs, policies, and activities on minority and low-income
populations. All DOT agencies must address compliance with Executive
Order 12898 and the DOT Order in all rulemaking activities. On August
15, 2012, FTA's Circular 4703.1 became effective, which contains
guidance for recipients of FTA financial assistance to incorporate EJ
principles into plans, projects, and activities (<a href="http://www.fta.dot.gov/documents/FTA_EJ_Circular_7.14-12_FINAL.pdf">http://www.fta.dot.gov/documents/FTA_EJ_Circular_7.14-12_FINAL.pdf</a>).
FTA has evaluated this action under Executive Order 12898, the DOT
Order, and the FTA Circular, and FTA has determined that this action
will not cause disproportionately high and adverse human health and
environmental effects on minority or low-income populations.
Regulation Identifier Number
A Regulation Identifier Number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this rule with the
Unified Agenda.
List of Subjects in 49 CFR Part 674
Grant program--transportation, Mass transportation, Reporting and
recordkeeping requirements, Safety.
Veronica Vanterpool,
Deputy Administrator.
0
In consideration of the foregoing, and under the authority of 49 U.S.C.
5329, the Federal Transit Administration revises and republishes 49 CFR
part 674 to read as follows:
PART 674--STATE SAFETY OVERSIGHT
Subpart A--General Provisions
Sec.
674.1 Purpose.
674.3 Applicability.
674.5 Policy.
674.7 Definitions.
674.9 [Reserved].
Subpart B--Role of the State
674.11 State Safety Oversight Program.
674.13 Designation of oversight agency.
674.15 Designation of oversight agency for multi-state system.
674.17 Use of Federal financial assistance.
674.19 Certification of a State Safety Oversight Program.
674.21 Withholding of Federal financial assistance for
noncompliance.
674.23 Confidentiality of information.
Subpart C--State Safety Oversight Agencies
674.25 Role of the State safety oversight agency.
674.27 State safety oversight program standards.
674.29 Public Transportation Agency Safety Plans: general
requirements.
674.31 Triennial audits: general requirements.
674.33 Notifications of safety events.
674.35 Investigations.
674.37 Corrective action plans.
674.39 State Safety Oversight Agency annual reporting to FTA.
674.41 Conflicts of interest.
Authority: 49 U.S.C. 5329; 49 CFR 1.91.
49 CFR Part 674
Subpart A--General Provisions
Sec. 674.1 Purpose.
This part carries out the mandate of 49 U.S.C. 5329 for State
safety oversight of rail fixed guideway public transportation systems.
Sec. 674.3 Applicability.
This part applies to States with rail fixed guideway public
transportation systems; State safety oversight agencies that oversee
the safety of rail fixed guideway public transportation systems; and
entities that own or operate rail fixed guideway public transportation
systems with Federal financial assistance authorized under 49 U.S.C.
Chapter 53.
Sec. 674.5 Policy.
(a) In accordance with 49 U.S.C. 5329, a State that has a rail
fixed guideway public transportation system within the State has
primary responsibility for overseeing the safety of that rail fixed
guideway public transportation system. A State safety oversight agency
must have the authority, resources, and qualified personnel to oversee
the number, size, and complexity of rail fixed guideway public
transportation systems that operate within a State.
(b) FTA will certify whether a State safety oversight program meets
the requirements of 49 U.S.C. 5329 and is adequate to promote the
purposes of the public transportation safety programs codified at 49
U.S.C. 5329.
Sec. 674.7 Definitions.
As used in this part:
Accountable Executive means a single, identifiable person who has
ultimate responsibility for carrying out the Public Transportation
Agency Safety Plan of a transit agency; responsibility for carrying out
the transit agency's Transit Asset Management Plan; and control or
direction over the human and capital resources needed to develop and
maintain both the transit agency's Public Transportation Agency Safety
Plan, in accordance with 49 U.S.C. 5329(d), and the transit agency's
Transit Asset Management Plan in accordance with 49 U.S.C. 5326.
Administrator means the Federal Transit Administrator or the
Administrator's designee.
Collision means any impact between a rail transit vehicle and any
other vehicle, object, or any person.
Contractor means an entity that performs tasks on behalf of FTA, a
State Safety Oversight Agency, or a Rail Transit Agency, through
contract or other agreement.
Corrective action plan means a plan developed by a rail transit
agency that describes the actions the rail transit agency will take to
address an identified deficiency or safety concern, and the schedule
for taking those actions. Either a State Safety Oversight Agency or FTA
may require a rail transit agency to develop and carry out a corrective
action plan.
Derailment for the purposes of this part means a safety event in
which one or more wheels of a rail transit vehicle unintentionally
leaves the rails.
Designated personnel means:
(1) Employees and contractors identified by a recipient whose job
[[Page 83982]]
functions are directly responsible for safety oversight of the public
transportation system of the public transportation agency; or
(2) Employees and contractors of a State Safety Oversight Agency
whose job functions require them to conduct reviews, inspections,
examinations, and other safety oversight activities of the rail fixed
guideway public transportation systems subject to the jurisdiction of
the agency.
Disabling damage means damage to a rail transit vehicle resulting
from a collision and preventing the vehicle from operating under its
own power.
Evacuation for life safety reasons means a condition that occurs
when persons depart from transit vehicles or facilities for life safety
reasons, including self-evacuation. A life safety reason may include a
situation such as a fire, the presence of smoke or noxious fumes, a
fuel leak from any source, an electrical hazard, or other hazard to any
person. An evacuation of passengers into the rail right of way (not at
a platform or station) for any reason is presumed to be an evacuation
for life safety reasons.
Fatality means a death confirmed within 30 days of a safety event.
Fatalities include suicides, but do not include deaths in or on transit
property that are a result of drug overdose, exposure to the elements,
illness, or natural causes.
FRA means the Federal Railroad Administration, an operating
administration within the United States Department of Transportation.
FTA means the Federal Transit Administration, an operating
administration within the United States Department of Transportation.
Hazard means any real or potential condition that can cause injury,
illness, or death; damage to or loss of the facilities, equipment,
rolling stock, or infrastructure of a public transportation system; or
damage to the environment.
Injury means any harm to persons as a result of a safety event that
requires immediate medical attention away from the scene. Does not
include harm resulting from a drug overdose, exposure to the elements,
illness, natural causes, or occupational safety events occurring in
administrative buildings.
Inspection means a physical observation of equipment, facilities,
rolling stock, operations, personnel, or records for the purpose of
gathering or analyzing facts or information.
Investigation means the process of determining the causal and
contributing factors of a safety event or hazard, for the purpose of
preventing recurrence and mitigating safety risk.
National Public Transportation Safety Plan means the plan to
improve the safety of all public transportation systems that receive
Federal financial assistance under 49 U.S.C. Chapter 53.
NTSB means the National Transportation Safety Board, an independent
Federal agency.
Person means a passenger, employee, contractor, volunteer, official
worker, pedestrian, trespasser, or any other individual on the property
of a rail fixed guideway public transportation system or associated
infrastructure.
Potential consequence means the effect of a hazard.
Public transportation has the meaning found in 49 U.S.C. 5302.
Public Transportation Agency Safety Plan (PTASP) means the
documented comprehensive agency safety plan for a transit agency that
is required by 49 U.S.C. 5329 and part 673 of this chapter.
Public Transportation Safety Certification Training Program
(PTSCTP) means the certification training program that is required by
49 U.S.C. 5329(c) and part 672 of this chapter.
Rail fixed guideway public transportation system means any fixed
guideway system, or any such system in engineering or construction,
that uses rail, is operated for public transportation, is within the
jurisdiction of a State, and is not subject to the jurisdiction of the
Federal Railroad Administration. These include but are not limited to
rapid rail, heavy rail, light rail, monorail, trolley, inclined plane,
funicular, and automated guideway.
Rail transit agency (RTA) means any entity that provides services
on a rail fixed guideway public transportation system.
Rail transit vehicle means any rolling stock used on a rail fixed
guideway public transportation system, including but not limited to
passenger and maintenance vehicles.
Revenue vehicle means a rail transit vehicle used to provide
revenue service for passengers. This includes providing fare free
service.
Risk-based inspection program means an inspection program that uses
qualitative and quantitative data analysis to inform ongoing inspection
activities. Risk-based inspection programs are designed to prioritize
inspections to address safety concerns and hazards associated with the
highest levels of safety risk.
Safety event means an unexpected outcome resulting in injury or
death; damage to or loss of the facilities, equipment, rolling stock,
or infrastructure of a public transportation system; or damage to the
environment.
Safety risk means the composite of predicted severity and
likelihood of a potential consequence of a hazard.
Safety risk mitigation means a method or methods to eliminate or
reduce the severity and/or likelihood of a potential consequence of a
hazard.
State means a State of the United States, the District of Columbia,
Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and
the Virgin Islands.
State Safety Oversight Agency (SSOA) means an agency established by
a State that meets the requirements and performs the functions
specified by 49 U.S.C. 5329(e) and (k) and the regulations set forth in
this part.
Unintended train movement means any instance where a revenue
vehicle is moving and is not under the control of a driver (whether or
not the operator is physically on the vehicle at the time). This
applies regardless of whether the event occurred in revenue service.
Sec. 674.9 [Reserved]
Subpart B--Role of the State
Sec. 674.11 State Safety Oversight Program.
Every State that has a rail fixed guideway public transportation
system must have a State Safety Oversight (SSO) program that has been
approved by the Administrator. FTA will audit each State's compliance
at least triennially, consistent with 49 U.S.C. 5329(e)(10). At
minimum, an SSO program must:
(a) Explicitly acknowledge the State's responsibility for
overseeing the safety of the rail fixed guideway public transportation
systems within the State;
(b) Demonstrate the State's ability to adopt and enforce Federal
and relevant State law for safety in rail fixed guideway public
transportation systems;
(c) Establish a State safety oversight agency, by State law, in
accordance with the requirements of 49 U.S.C. 5329 and this part;
(d) Demonstrate that the State has determined an appropriate
staffing level for the State safety oversight agency commensurate with
the number, size, and complexity of the rail fixed guideway public
transportation systems in the State, and that the State has consulted
with the Administrator for that purpose;
(e) Demonstrate that the employees and other personnel of the State
safety oversight agency who are responsible for the oversight of rail
fixed guideway public transportation systems are qualified to perform
their functions,
[[Page 83983]]
based on appropriate training, including substantial progress toward or
completion of the Public Transportation Safety Certification Training
Program; and
(f) Demonstrate that by law, the State prohibits any public
transportation agency in the State from providing funds to the SSOA.
Sec. 674.13 Designation of oversight agency.
(a) Every State that must establish a State Safety Oversight
program in accordance with 49 U.S.C. 5329 must also establish an SSOA
for the purpose of overseeing the safety of rail fixed guideway public
transportation systems within that State. Further, the State must
ensure that:
(1) The SSOA is financially and legally independent from any public
transportation agency the SSOA is obliged to oversee;
(2) The SSOA does not directly provide public transportation
services in an area with a rail fixed guideway public transportation
system the SSOA is obliged to oversee;
(3) The SSOA does not employ any individual who is also responsible
for administering a rail fixed guideway public transportation system
the SSOA is obliged to oversee;
(4) The SSOA has authority to review, approve, oversee, and enforce
the Public Transportation Agency Safety Plan for a rail fixed guideway
public transportation system required by 49 U.S.C. 5329(d) and part 673
of this chapter;
(5) The SSOA has investigative, inspection, and enforcement
authority with respect to the safety of all rail fixed guideway public
transportation systems within the State;
(6) At least once every three years, the SSOA audits every rail
fixed guideway public transportation system's compliance with the
Public Transportation Agency Safety Plan required by 49 U.S.C. 5329(d)
and part 673 of this chapter; and
(7) At least once a year, the SSOA reports the status of the safety
of each rail fixed guideway public transportation system to the
Governor, the FTA, and the board of directors, or equivalent entity, of
the rail fixed guideway public transportation system.
(b) At the request of the Governor of a State, the Administrator
may waive the requirements for financial and legal independence and the
prohibitions on employee conflicts of interest under paragraphs (a)(1)
and (3) of this section, if the rail fixed guideway public
transportation systems in design, construction, or revenue operations
in the State have fewer than one million combined actual and projected
rail fixed guideway revenue miles per year or provide fewer than ten
million combined actual and projected unlinked passenger trips per
year. However:
(1) If a State shares jurisdiction over one or more rail fixed
guideway public transportation systems with another State, and has one
or more rail fixed guideway public transportation systems that are not
shared with another State, the revenue miles and unlinked passenger
trips of the rail fixed guideway public transportation system under
shared jurisdiction will not be counted in the Administrator's decision
whether to issue a waiver.
(2) The Administrator will rescind a waiver issued under this
subsection if the number of revenue miles per year or unlinked
passenger trips per year increases beyond the thresholds specified in
this subsection.
Sec. 674.15 Designation of oversight agency for multi-state system.
In an instance of a rail fixed guideway public transportation
system that operates in more than one State, all States in which that
rail fixed guideway public t
[…truncated; see source link]Indexed from Federal Register on October 18, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.