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FAST Act's Fresh Focus on Regulations; Industry Turns Its Attention to Implementation

Now that the FAST Act ensures a predictable federal funding stream to public transit organizations for the next five years, industry experts are engaged in the numerous—and complex—details of administering its implementation and regulatory requirements. Passenger Transport recently took the opportunity to ask several experts to share their assessment of next steps.

With the passage of the FAST Act, federal lawmakers and officials have pivoted to implementation and regulatory matters under both the FAST Act and MAP-21. Based on your experience on APTA committees and in your own organization, what do you see as the central regulatory issues—and ideal outcomes—facing the public transportation industry?

The Devil Is Always in the Details


CHRISTOPHER BOYLAN
Director, Governmental and Strategic Partnerships
General Contractors Association of New York
Chair, APTA Federal Procedures & Regulations Subcommittee

RICK BACIGALUPO
Federal Relations Manager
Orange County Transportation Authority, CA
Vice Chair, Federal Procedures & Regulations Subcommittee


After years of preparation and lobbying by APTA and our strategic partners, Congress finally passed two major pieces of legislation reauthorizing federal surface transportation programs—MAP-21 in 2013 and the FAST Act in December. Together, they laid out a framework for policy and funding for the public transportation industry for the next five years and beyond.

Our advocacy role nonetheless continues, since many of their provisions must be administratively implemented—a task that falls primarily on DOT, FTA and FRA. That responsibility is, however, more than simply ministerial. Like the proverbial camel under the tent, interpretation of the law is an art form that can at best be subjective and at worst, go beyond the intent of the written statute.

Which is why the subcommittee we oversee and the APTA staff stay abreast of regulatory activity and comment on proposed regulations that run contrary to our own interpretation of the law and/or our collective industry interests.

Anyone who has commented on regulations or rulemakings through the official legal “docket” process knows how frustrating and impersonal an experience it can be, especially when there is no palpable feedback along the way and final outcomes leave the impression that no one was listening.

However, over the last year and a half we’ve tried to change some of that dynamic by opening a proactive dialogue with our colleagues at DOT and FTA about concerns with how existing regulations are being enforced or suggestions about emerging regulations prior to formal issuance.

FTA Acting Administrator Therese McMillan and her senior staff, including former Charlotte Area Transit System CEO Carolyn Flowers, FTA senior advisor, and FTA’s legal and program oversight teams, have not only been receptive, but have embraced the opportunity. In publicly noticed sessions open to the entire APTA membership, we’ve been able to share concerns over thorny issues like the application of “Buy America” to construction and technology projects, accessibility guidelines and regional consistency of triennial reviews.

Separately, with a number of MAP-21 policy changes having already entered the formal issuance process, we will continue to comment through the docket. Transit asset management plans, accessibility guidelines and perhaps one of the biggest changes to the FTA’s relationship with the industry—the Agency Safety Plan rule—are examples. With regard to the last issue, it is worthy of note that all public transportation agencies—not just rail operators—must have a plan in place one year after the final regulation is promulgated. It is vital that every agency take a close look at the proposed requirements, contribute to APTA’s comments and also send in their own to highlight issues important to their agencies.

Since many new FTA rulemakings will have an impact on what your agency is doing and planning to do, we welcome your participation in our subcommittee, but at the end of the day, everyone needs to stay informed about the “devilish details.”

Here are a couple of suggestions for how to do so:

1. Make sure you’re checking the APTA website regularly. You’ll find a series of charts showing each major federal transit regulatory action, when first proposed, comment deadlines, APTA comments and resulting final actions. APTA has broken down the dozens of recent DOT proposed and final rules under MAP-21 and the FAST Act into 12 common-sense categories, including areas ranging from ADA/civil rights to safety and security. In addition, APTA has established a rulemaking forum exclusively for APTA members to comment on particular DOT proposals. For example, you can currently read several thoughtful posts regarding FTA’s Notice of Proposed Rulemaking on Geographic Hiring Preferences.

2. Stay involved with your state or regional transit association in addition to APTA. There you may hear details of particular state requirements that may conflict with or need special treatment under FTA policies. For example, California has had a particular problem receiving section 13(c) labor certification for many grants due to state pension reform legislation. Although FTA is aware of this issue, it is unfortunately governed by the Department of Labor, which may not be aware of state laws that need to be taken into consideration in applying federal regulatory policy. Look for ways to help FTA reconcile any differences.

3. Keep in touch with other industry groups. APTA is a great starting place to find peers of your size, mode or interests, but there are other independent special interest subgroups that regularly collaborate with APTA yet still focus on a particular industry discipline.

4. Use preparation for the triennial review process to familiarize yourself with changes that may have been put in place since your last one. Keep track of what other industry peers are experiencing in their own triennials.

It is not surprising that inconsistencies and misinterpretations will occur, especially since many reviews are undertaken by private consultants around the country. In order to properly raise what you may believe is an erroneous application or interpretation of FTA regulation or policy, you need to make sure that you completely understand it.

Don’t be shy about asking for particular citations. Is the requirement clear as written? Was a new policy interpretation shared by notice and comment? Is it being applied to everyone consistently? If you need to, ask for time to consult with your own attorney or, better yet, have him or her attend the triennial review.

In conclusion, the regulatory process is just as involved and complicated as is the legislative process itself, if not more so. Use the resources that your APTA membership provides, as well as your own capabilities, to stay on top of the details—and ahead of the devil!


A Time for Balance


MARLA LIEN

General Counsel

Regional Transportation District, Denver

Kaplan, Kirsch & Rockwell (as of mid-March)

Chair, Legal Affairs Committee


MAP-21 introduced requirements for transit agencies and state and regional planning agencies to integrate safety, state of good repair and long-term trans­portation planning. Since MAP-21’s passage, FTA has introduced five rulemaking initiatives that would ­create three new regulations and replace two existing ones in the areas of state safety oversight, safety certification, transit asset management and regional planning.

The FAST Act requires grantees to have a transit asset management plan, requires a national transit asset management system that includes a definition of state of good repair (SOGR) and makes an express link between a national public transportation safety plan and SOGR. Planning processes are now required to include performance-targets-based criteria addressing safety, infrastructure condition and reliability. As of yet, there is no express requirement that federal grants be used to meet performance criteria. However, federal grants can only be used for projects in a regional and state plan, which now must have measurable targets for these outcomes.

Federal law emphasizing long-term planning, funding, safety and infrastructure integration is a wise choice. It cannot become a Hobson’s choice or a “take it or leave it” option. Public policy makers and the transit industry cannot let this needed emphasis on safety and infrastructure pit new projects against maintenance, growing areas of the country against older transit systems and safety against development.

Lawmakers and transit agencies have a unique opportunity to capitalize on the concurrent movements of urbanization and aging that have renewed the public’s interest in transportation. The emphasis on safety and infrastructure maintenance must be balanced against the need to expand the availability of public transportation in new sectors, geographically and demographically.

Funding is needed to restore existing infrastructure while encouraging a tectonic shift away from single occupant vehicles to public transit and shared occupancy. Separate criteria are needed for new programs versus capital maintenance, and federal loan programs need to embrace projects and re-financings that may not result in ribbon cuttings but will free up agency funds.

As an industry, transit needs to find the creativity, funding and commitment for maintaining infrastructure that is in place and delivering more.

Peel Back the Onion


PATRICK SCULLY

Executive Vice President, Sales & Marketing

Motor Coach Industries

Chair, Business Member Board of Governors


With the passage of the FAST Act in late 2015, we now see an interesting landscape for our industry for the next five years. Clearly, the news is good with certainty provided for transit agencies that a medium-term bill provides. From an APTA business member perspective, the news is certainly favorable but as we peel back the onion we all need to understand the details of the act as well.

From a positive perspective, we have a five-year act with funding of $61.1 billion guaranteed through September 2020. This is the first long-term funding bill passed by Congress since 2006 and ­SAFETEA-LU. The act restores funding the bus program lost under MAP-21. State of Good Repair funds also see healthy increases over the term and the act contains a substantial rail title for the first time in a major surface transportation authorization bill.

The act also contains some very critical issues, most notably increases in Buy America provisions for rolling stock from the current 60 percent to 70 percent by 2020 and pilot procurement opportunities.

The Buy America content increase was addressed in detail by APTA and its business members in fall 2015 with members of Congress. We fought for leaving things as status quo to avoid changes in a very tenuous supply base and probable cost increases.

Although understandable politically, the Buy America content increases will have an adverse shrinking effect on the rolling stock supply base and will ultimately result in higher prices being paid by transit agencies for rolling stock. We need to realize that we live in a global economy with our U.S. transit industry highly dependent on global heavy-duty truck and automotive component suppliers that deal in markets many thousands of times larger than ours here in the U.S. and Canada.

These suppliers will face decisions to alter their manufacturing bases for a few thousand units per year and some will clearly pass on the opportunity. As a consequence, alternate suppliers will be needed with commensurate quality and startup challenges being faced. These will be the unintended consequences not envisioned by Congress.

As for the pilot procurement opportunities, we all need to tread carefully. We have seen examples in the past for pilot programs that have failed dismally and without the consultation of the supplier base in the process. We can only ask again that these pilot programs not be undertaken until we have held clear and open discussion with all stakeholders to ensure a positive path forward. As suppliers to our industry, we can assist—but only if we are consulted.

Our industry has cause to celebrate given we have a long-term funding act, and we as business members applaud the work of APTA and its members. However, we need to proceed cooperatively and cautiously to avoid the unintended hangover effects that are on the horizon.

Unleash Agencies to Modernize


RICK RAMACIER

General Manager

Central Contra Costa Transit Authority, ­Concord, CA

Member, Federal Procedures & ­Regulations Subcommittee

I see the FAST Act as largely a continuation of MAP-21 with respect to the regulatory process. In fact, much of the regulatory work of MAP-21 will continue through the FAST Act. We will see this as DOT and FTA continue to issue Notices of Proposed Rulemakings (NPRM) and final rules with respect to the many provisions in MAP-21 on safety, transit asset management and state of good repair.

To date, the industry—through APTA, as well as on an individual basis—has been very engaged in the various rulemaking processes. We must maintain and build on that presence, helping to steer those ships to calm, predictable and manageable seas.

Largely through the Federal Procedures and Regulations Subcommittee of APTA, we have begun what I hope will be a very productive dialogue with our partners at FTA to address a growing concern that rulemaking indeed be done through the NPRM process and not through the FTA triennial review process.

This should be addressed by ensuring the reviews only reflect already adopted rules and not anticipate new rules and through greater consistency from review contractor to review contractor. All APTA members owe a bus load of thanks to Chris Boylan and Rick Bacigalupo for their leadership on this regulatory issue.

One emerging central regulatory issue or theme, perhaps, is that of unleashing public transit from a plethora of federal regulations and policies that effectively prevent many public transit systems from embracing and fully taking advantage of technology to modernize and greatly improve our many service delivery options. This could include things like procurement to service delivery models and who we can partner with.

Without a major overhaul of many longstanding federal regulations and policies, public transit could become viewed as much less relevant or even obsolete. Thus, I would like to see APTA begin to really focus on these items. ­Furthermore, we should invite our partners at FTA to join us in an endeavor to identify which rules and policies need to be overhauled for public transit to become fully integrated with 21st-­century transportation opportunities using 21st-century business practices.

Strengthen Oversight, Training, Safety


VIJAY KHAWANI

Executive Officer, Corporate Safety

Los Angeles Metro

Chair, Bus Safety Committee


There are several central regulatory issues that need to be addressed as part of the FAST Act. One of the regulatory issues has to do with providing local safety oversight for the bus mode.

Unlike the rail mode, which has State Safety Oversight Agencies (SSOA) responsible for overseeing transit rail safety, many states do not have a local safety oversight agency for bus transit. So the first challenge from a federal perspective is selecting a state agency that will be given responsibility to oversee the 1,000-plus bus transit systems in the states in a similar manner to the SSOAs for rail transit systems.

From the rail perspective, a key issue that has to be dealt with is the lack of available technical training and the vacuum of adequately trained staff in the rail safety profession. Merely attending five or six classroom training sessions does not mean one is adequately trained.

For rail in particular, adequate training will require “boots-on-the-ground”-type training and proficiency can only be attained after having several years of experience under your belt. So, while I do not believe there is a quick fix to this dilemma—which we all, including FTA, will have to struggle with as we move forward with implementation of the new requirements—FTA should start developing a technical training curriculum to train persons responsible for overseeing rail safety.

In keeping with one of the main themes of SMS that deals with mitigation of identified safety risks and hazards, a key obstacle that many public transit agencies face today is convincing designers and project managers to incorporate design-related measures that would eliminate certain hazards or enhance safety if additional safety measures were to be included in the design of new systems or extensions to existing lines.

FTA could assist public transit agency safety staff by developing minimum safety performance standards not only for public transportation vehicles used in revenue operations as required by MAP-21, but also for other system elements for which common hazards are known and mitigations are available. These performance standards (or requirements) should be incorporated in FTA’s National Public Transportation Safety Plan.

Finally, the lack of available funding to implement interventions necessary to mitigate hazards on existing operating rail transit systems is a serious concern. Very few agencies have the luxury of appropriating adequate funds dedicated to mitigation of hazards on an annual basis.

FTA can assist all agencies by making available funds to implement safety mitigations based on NTD data and a formula that allocates the funds in a fair and equitable manner.

Join an APTA Committee

The experts cited in this article are leaders or members of various APTA committees, which are active in all areas of the industry and are structured to strengthen interaction among members in a wide range of transit disciplines.

Membership is open to all employees of APTA members in good standing, except for committees with membership by appointment only. Submit the online Committee Interest Form or contact the advisor listed beside each committee description here.
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