This content does not have the force and effect of law and is not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. Grantees and subgrantees should refer to FTA’s statutes and regulations for applicable requirements.

Table of Contents

• General
• Applicability 
• ASP Review and Update
• Infectious Disease Exposure
• Safety Committees
• Safety Performance Targets
• Training

General

Q1: What is the purpose of the February 17, 2022 Dear Colleague Letter?

A1: The Dear Colleague Letter informs the transit industry about Bipartisan Infrastructure Law changes to the Public Transportation Agency Safety Plan (PTASP) requirements at 49 U.S.C. § 5329(d) and establishes compliance deadlines for implementing these new provisions.

Q2: What are the compliance deadlines established in FTA’s Dear Colleague Letter?

A2: By July 31, 2022, a transit agency that receives Section 5307 funding and serves a large urbanized area (an urbanized area with a population of 200,000 or more) must establish a Safety Committee compliant with 49 U.S.C. § 5329(d)(5). Once established, the Safety Committee should begin work to meet its responsibilities as soon as practicable. If a transit agency is not yet compliant with the new PTASP requirements, FTA expects that by December 31, 2022, the Safety Committee will comply with the statutory requirement that it must approve an update to the agency’s Agency Safety Plan (ASP), incorporating applicable PTASP requirements in 49 U.S.C. § 5329(d).

By December 31, 2022, a transit agency serving a small urbanized area (an urbanized area with a population of fewer than 200,000) must review and update its ASP in cooperation with frontline employee representatives. If the agency’s ASP was not developed in cooperation with frontline employee representatives, FTA expects the agency to update its ASP in cooperation with frontline employee representatives by the deadline. 

Q3: Where can I find more information about the Bipartisan Infrastructure Law and the changes to the PTASP requirements at 49 U.S.C. § 5329(d)?

A3: Recipients should refer to the statute for applicable PTASP requirements. See FTA’s Bipartisan Infrastructure Law web page for more information on the law. This page also includes helpful fact sheets. For details on changes to the PTASP requirements, see FTA’s February 17, 2022 Dear Colleague Letter and the Bipartisan Infrastructure Law Changes to 49 U.S.C. § 5329(d). 

Q4: How will FTA monitor compliance with the Bipartisan Infrastructure Law PTASP requirements?

A4: Applicable recipients already are required to certify that they have established an Agency Safety Plan that meets the requirements of 49 U.S.C. § 5329(d)(1) and 49 CFR part 673 as part of the annual certifications and assurances for FTA grants and cooperative agreements (Category 2). FTA monitors these certifications in its Transit Award Management System. FTA will integrate the new requirements at 49 U.S.C. § 5329(d) into the Triennial and State Management Review processes beginning in Calendar Year 2023. 

Q5: What is the penalty if a recipient does not comply with the new PTASP requirements?

A5: Failure to comply with a requirement of 49 U.S.C. § 5329(d) subjects a recipient to a range of FTA enforcement options depending upon the circumstances, including, but not limited to, actions authorized by 49 U.S.C. § 5329(g) and 2 CFR §§ 200.339-.340. Penalties may include a recipient being ineligible to receive FTA grant funds until the recipient satisfies the requirements or FTA imposing more frequent reporting requirements until the recipient achieves compliance.

Q6: Will FTA provide sample materials or resources to address the new Bipartisan Infrastructure Law requirements at 49 U.S.C. § 5329(d)?

A6: Yes. As these materials become available, they will be posted to FTA's PTASP TAC Resource Library, and FTA will send GovDelivery email announcements. Sign up for Updates.

Applicability

Q1: Which agencies are required to implement the new changes to Section 5329(d) in the Bipartisan Infrastructure Law?

A1: The Bipartisan Infrastructure Law amends FTA’s safety program at 49 U.S.C. § 5329(d) by adding to the Public Transportation Agency Safety Plan (PTASP) requirements. These changes apply to transit agencies that must have an Agency Safety Plan under the PTASP regulation (49 CFR part 673). See additional details on PTASP applicability here. Most of the new Bipartisan Infrastructure Law requirements apply to transit agencies based on the size of the urbanized areas they serve. 

Q2: Where can I find information on the size of the urbanized area my agency serves?

A2: Transit agencies can identify the urbanized areas they serve based on data reported to the National Transit Database (NTD). FTA publishes this data publicly on its NTD Data website. The 2020 Annual Database Federal Funding Allocation file presents the latest available data. This file shows the urbanized area served and the population of those urbanized areas.

Q3: My agency is a recipient of Section 5307 funds located in a small urbanized area. While we primarily serve a small urbanized area, we also serve a large urbanized area. Do the Bipartisan Infrastructure Law requirements for large urbanized areas apply to our agency?

A3: Yes. Your agency must meet the requirements for agencies that receive Section 5307 funds and serve an urbanized area with a population of 200,000 or more. This includes requirements for the establishment of a joint labor-management Safety Committee, a risk reduction program, and new safety training requirements.

Q4: My agency is a small public transportation provider, and we serve a large urbanized area. Do the Bipartisan Infrastructure Law requirements for large urbanized areas apply to my agency?

A4: Yes. Agencies considered small public transportation providers under the PTASP regulation that serve a large urbanized area must meet the requirements for agencies serving a large urbanized area.

ASP Review and Update

Q1: We receive Section 5307 funds and serve a large urbanized area. We have already conducted our Agency Safety Plan (ASP) review and update for 2022 per the timeline specified in our ASP. Are we required to conduct another update and have our Safety Committee approve it before December 31, 2022? 

A1: If your agency is already in compliance with the requirements at 49 U.S.C.§ 5329(d), as amended by the Bipartisan Infrastructure Law, the agency does not need to conduct another ASP update. If, however, your agency is not yet compliant with the new requirements—including establishing a Safety Committee compliant with 49 U.S.C.§ 5329(d)(5) by July 31, 2022— then the Safety Committee must comply with the statutory requirement to approve an update to the ASP, incorporating the applicable requirements, by December 31, 2022, regardless of when the last update or approval occurred.

Q2: The Dear Colleague letter notes that transit agencies serving a small urbanized area must develop their Agency Safety Plans (ASP) in cooperation with frontline employees by December 31, 2022 if an agency’s ASP was not previously developed in cooperation with frontline employee representatives. If we have already reviewed and updated our ASP this year without cooperation from frontline employee representatives, does FTA expect us to review and update our ASP again before the deadline?

A2: Yes. If the existing ASP was not developed in cooperation with frontline employee representatives, agencies that serve a small urbanized area must update their ASP in cooperation with frontline employee representatives by December 31, 2022, regardless of when the last update occurred.

Q3: If a State Department of Transportation previously developed an Agency Safety Plan (ASP) for a small public transportation provider under its jurisdiction, is it responsible for updating the ASP?

A3: No. The State Department of Transportation is not responsible for updating the ASP for a small public transportation provider but may choose to provide ongoing support. The small public transportation provider is responsible for updating its ASP to comply with the applicable requirements in § 5329(d). 

State DOTs must still develop ASPs for newly applicable small public transportation providers that do not opt to develop their ASP. These ASPs must address all applicable PTASP requirements in § 5329(d), including the new Bipartisan Infrastructure Law requirements.

Q4: How do these changes affect the role of State Safety Oversight Agencies in reviewing and approving Agency Safety Plans (ASP)?

A4: SSOAs are responsible for reviewing and approving rail transit agency ASPs and ASP updates after the agency Board of Directors’ approval. The new Bipartisan Infrastructure Law requirements do not change this responsibility.

Q5: How should our agency integrate the new risk reduction program into our Agency Safety Plan (ASP)?

A5: Federal transit law at 49 U.S.C. § 5329(d)(1)(I) requires Section 5307 recipients serving a  large, urbanized area (an urbanized area with a population of 200,000 or more) to establish a risk reduction program for transit operations to improve safety by reducing the number and rates of accidents, injuries, and assaults on transit workers based on data submitted to the National Transit Database (NTD). Transit agencies have flexibility on how to integrate risk reduction programs into their ASPs and how to implement them to best suit their agency’s unique circumstances to meet the statutory requirements.

Performance targets for a risk reduction program at 49 U.S.C. § 5329(d)(4) are not required until FTA has updated the National Public Transportation Safety Plan to include these performance measures. However, nothing precludes an Agency from implementing a risk reduction program in advance and updating it once the performance measures are updated.  

Q6: Our agency serves a small, urbanized area (an urbanized area with a population of fewer than 200,000). Is our agency required to certify or document that we developed our Agency Safety Plan (ASP) in cooperation with frontline employee representatives?

A6: Yes. Recipients are required to certify that they have established a compliant ASP as part of the annual certifications and assurances for FTA grants and cooperative agreements (Category 2). Safety plan documentation requirements at 49 CFR 673.31 require transit agencies to maintain documents that set forth their ASP, including those related to the implementation of their Safety Management System (SMS), and results from SMS processes and activities. These documents must be maintained for a minimum of three years after they are created. FTA will review recipient compliance through the Triennial Reviews and State Management Reviews beginning in 2023.

Infectious Disease Exposure

Q1: The Bipartisan Infrastructure Law requires that Agency Safety Plans (ASP) include strategies to minimize exposure to infectious diseases, consistent with the Centers for Disease Control and Prevention guidelines or a State health authority. How can the ASP address this requirement?

A1: FTA encourages each transit agency to consider identifying mitigations or strategies related to exposure to infectious diseases through the Safety Risk Management process described in the agency’s ASP. 

Q2: Does the Bipartisan Infrastructure Law require my ASP to follow guidance from the Centers for Disease Control and Prevention (CDC) and the State health authority on strategies for addressing infectious diseases? 

A2: No. The Bipartisan Infrastructure Law specifies that your agency must follow guidance from either the CDC or a State health authority. 

Safety Committees

Q1: What is the role of the Safety Committee?

A1: The Bipartisan Infrastructure Law requires the Safety Committee to approve an agency’s Agency Safety Plan (ASP) and any updates to the ASP. This approval must occur before the agency’s Board of Directors approves the ASP or update.

The Safety Committee also is responsible for, at a minimum: (1) identifying and recommending risk-based mitigations or strategies necessary to reduce the likelihood and severity of consequences identified through the agency's safety risk assessment; (2) identifying mitigations or strategies that may be ineffective, inappropriate, or were not implemented as intended; and (3) identifying safety deficiencies for purposes of continuous improvement.

Q2: Our agency already has a joint labor-management committee. Can this committee assume the responsibilities of the Safety Committee at § 5329(d)(5), or do we need to establish an entirely new committee?

A2: It depends. If the existing joint labor-management committee is compliant with § 5329(d)(5), that committee is sufficient to meet this requirement. However, if the joint labor-management committee does not meet the statutory requirements, the agency must establish a compliant Safety Committee by July 31, 2022. 

Q3: Does the Bipartisan Infrastructure Law require that a certain number of employee representatives and management representatives be on the Safety Committee? 

A3: The new Bipartisan Infrastructure Law requires that an agency’s Safety Committee must have an equal number of frontline employee representatives and management representatives. Each agency should determine the appropriate size of its Safety Committee.

Q4: Our agency does not have a large number of employees, and the frontline employees are not represented by a labor organization. Does the Safety Committee requirement pertain to our agency? 

A4: If your agency receives Section 5307 funds and serves an urbanized area with a population of 200,000 or more, then it must establish a Safety Committee compliant with § 5329(d). If a labor organization does not represent your frontline workforce, your agency may determine how frontline employee representatives will be selected.

Q5: What does “plurality of the frontline workforce” mean in the context of Safety Committees?

A5: Frontline employee representatives must be selected by a labor organization that represents the plurality of the agency’s frontline workforce employed by the agency or a contractor, to the extent labor organizations represent the frontline workforce. For transit agencies with multiple labor organizations whose membership includes frontline workers, the labor organization that represents the greatest number of frontline workers employed by the agency or contractor selects frontline employee representatives to serve on the Safety Committee. This labor organization may select frontline employee representatives for the Safety Committee throughout the organization, not just from their membership.

Q6: My agency’s frontline workforce includes agency employees and contractors. How should frontline employee representatives be chosen for my agency’s Safety Committee? 

A6: Frontline employee representatives must be selected by a labor organization representing the plurality of the agency’s frontline workforce employed by the agency or a contractor (the largest number of frontline workers), to the extent labor organizations represent the frontline workforce.  This labor organization may select frontline employee representatives for the Safety Committee from throughout the organization, not just from within their membership.

Q7: Our agency has more than one labor union, and our frontline workforce includes union and non-union employees. How do we form our Safety Committee?

A7: If an agency has more than one union representing frontline transit workers, or a mix of union and non-union frontline transit workers, the labor organization that represents the greatest number of frontline workers employed by the agency or contractor selects frontline employee representatives to serve on the Safety Committee. This labor organization may select frontline employee representatives for the Safety Committee from throughout the organization, not just from within their own membership.

Q8: Our agency has two Agency Safety Plans: one for our bus modes and one for our rail modes. Can we have two Safety Committees?

A8: Yes. Transit agencies operating under two Agency Safety Plans (ASP) may establish one Safety Committee for each ASP, so long as both Committees 49 U.S.C. § 5329(d)(5) requirements.

Q9: Our agency is a Section 5307 recipient that oversees several Section 5307 subrecipients who operate service on behalf of our agency. Does our agency need to form a Safety Committee, or does each subrecipient need to form its own Safety Committee? 

A9: It depends. If a Section 5307 recipient or subrecipient is required to have an Agency Safety Plan (ASP) under the PTASP regulation and serves a large urbanized area (an urbanized area with a population of 200,000 or more), it must establish its own Safety Committee. If, however, a Section 5307 recipient or sub-recipient is not required to have an ASP under the PTASP regulation or does not serve a large urbanized area, it is not required to establish a Safety Committee. 

Safety Performance Targets

Q1: Our agency is a reduced reporter that doesn’t submit detailed safety data to the National Transit Database, but we serve a large urbanized area. How can our agency meet the new requirement for risk reduction program safety performance targets?

A1: FTA plans to update the National Public Transportation Safety Plan to provide additional information on how agencies can meet the new requirement for safety performance targets. However, performance targets for a risk reduction program are not required to be in place until FTA has updated the National Public Transportation Safety Plan to include additional performance measures required by the Bipartisan Infrastructure Law. 

Q2: We do not serve a large urbanized area with a population of 200,000 or more. Do we still have to develop safety performance targets? 

A2: Yes. The Bipartisan Infrastructure Law did not remove any of the existing safety performance target requirements in the PTASP regulation (49 CFR § 673.11(a)(3)). The current National Public Transportation Safety Plan will remain in effect until FTA publishes an update.

Q3: Is an agency only required to set aside funds for safety-related projects if the agency does not meet its risk reduction performance targets?

A3: No. Each Section 5307 recipient serving a large urbanized area (an urbanized area with a population of 200,000 or more) must allocate at least 0.75 percent of its Section 5307 funds for safety-related projects eligible under Section 5307. If a recipient of Section 5307 funds does not meet its risk reduction performance targets at 49 U.S.C. § 5329(d)(4), then it must allocate this safety set aside towards projects that are reasonably likely to assist the recipient in meeting the performance targets. However, performance targets for a risk reduction program at 49 U.S.C. § 5329(d)(4) are not required until FTA has updated the National Public Transportation Safety Plan to include these performance measures.

Q4: When must applicable agencies begin to allocate funds for safety projects required under 49 U.S.C § 5329(d)(4)(B)?

A4: Each Section 5307 recipient serving a large urbanized area (an urbanized area with a population of 200,000 or more) must allocate at least 0.75 percent of its Section 5307 funds for safety-related projects. The Notice of FTA Transit Program Changes, Authorized Funding Levels and Implementation of the Infrastructure Investment and Jobs Act; and FTA Fiscal Year 2022 Apportionments, Allocations, Program Information and Interim Guidance, published in the Federal Register, states in section II.D. Previously Authorized Funding: “For programs that are continued under the IIJA with amendments, the provisions of the IIJA now apply to all unobligated funds from FY 2021 and prior years, as well as to FY 2022 funds.” Agencies must amend existing grants for their FY 2022 applications for Section 5307 Urbanized Area Formula Funding in the Transit Award Management System (TrAMS) to meet this requirement. For more information or assistance, please contact your FTA Regional Office.
 

Training

Q1: Do the new training requirements in the Bipartisan Infrastructure Law include maintenance personnel? 

A1: Yes. The Bipartisan Infrastructure Law adds maintenance personnel as personnel that must participate in the agency’s safety training program. The Bipartisan Infrastructure Law also requires maintenance personnel, operations personnel, and personnel directly responsible for safety complete de-escalation training. 

Q2: How can transit agencies meet the de-escalation training requirement?

A2: Transit agencies may choose how they satisfy this requirement. For example, agencies may decide to use FTA’s training resources, including the National Transit Institute’s Assault Awareness and Prevention for Transit Operators.