Proposed General Directive 24-1: Required Actions Regarding Assaults on Transit Workers

AGENCY:

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

ACTION:

Notice of proposed general directive; request for comments.

SUMMARY:

The Federal Transit Administration (FTA) is proposing a General Directive to address the significant and continuing national-level safety risk related to assaults on transit workers. The General Directive would require each transit agency subject to FTA's Public Transportation Agency Safety Plans (PTASP) regulation to conduct a safety risk assessment, identify safety risk mitigations or strategies, and provide information to FTA on how it is assessing, mitigating, and monitoring the safety risk associated with assaults on transit workers. As required by the Bipartisan Infrastructure Law, each transit agency serving a large urbanized area must involve the joint labor-management Safety Committee when identifying safety risk mitigations.

DATES:

Comments should be filed by February 20, 2024. FTA will consider comments received after that date to the extent practicable.

ADDRESSES:

You may send comments, identified by docket number FTA–2023–0032, by any of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for sending comments.

• Fax: (202) 493–2251.

• Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12–140, Washington, DC 20590–0001.

• Hand Delivery/Courier: West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.

Instructions: All submissions received must include the agency name (Federal Transit Administration and Docket Number (FTA–2023–0032). All comments received will be posted without change to https://www.regulations.gov, including any personal information provided.

Docket: For internet access to the docket to read background documents and comments received, go to https://www.regulations.gov. Background documents and comments received may also be viewed at the U.S. Department of Transportation, 1200 New Jersey Ave. SE, Docket Operations, M–30, West Building Ground Floor, Room W12–140, Washington, DC 20590–0001, between 9 a.m. and 5 p.m. EST, Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

For program matters, contact Stewart Mader, Office of Transit Safety and Oversight, (202) 366–9677 or stewart.mader@dot.gov. For legal matters, contact Heather Ueyama, Office of Chief Counsel, (202) 366–7374 or heather.ueyama@dot.gov.

Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

FTA is seeking comment on a proposed General Directive to address the significant and continuing nationwide safety risk associated with assaults on transit workers. This General Directive is part of FTA's ongoing comprehensive efforts to improve transit worker safety. FTA is also undertaking other actions related to transit worker safety, including funding research, sponsoring training, soliciting public input, providing technical assistance. FTA intends to use information submitted to it pursuant to the General Directive and other FTA initiatives to inform future FTA actions, including rulemakings such as the planned Transit Worker and Public Safety rule.

Assaults on Transit Workers: National-Level Hazard

From 2008 to 2021, the National Transit Database (NTD) documented an average of 241 assaults on transit workers major events per year, including 192 per year occurring on transit vehicles, 44 per year occurring in transit revenue facilities, and five per year occurring in other non-public locations, such as maintenance shops and yards. The number of reported assaults on transit workers per 100 million vehicle revenue miles (VRM) increased by an average of eight percent per year from 2008 to 2021—a 121 percent total increase from the 2008 rate of assaults on transit workers.

The NTD data collected and published in this period does not reflect the number and rate of all assaults on transit workers because it does not include assaults on transit workers that did not require medical attention. In the past, NTD reporting requirements focused on the most serious events that met the NTD “major event” reporting threshold, as defined by the NTD reporting manual. The Bipartisan Infrastructure Law, enacted as the Infrastructure Investment and Jobs Act (Pub. L. 117–58), significantly expands the data that FTA will collect through the NTD on assaults on transit workers. To implement this requirement, FTA recently finalized new NTD reporting requirements regarding assaults on transit workers on February 23, 2023, (88 FR 11506) and has begun collecting expanded data.

While FTA does not collect data on precursor events to assaults, industry experts cite anecdotal evidence that assaults on operators are a product of direct interaction with the public and that disputes over fares and other policy enforcement activities are a significant contributor to assaults on operators. The Occupational Safety and Health Administration states that workers who exchange money as part of their job duties, work in customer service or public service, and work alone are at higher risk for workplace violence. Similarly, the National Institute for Occupational Safety and Health found that risk factors for workplace assault include interaction with the public, exchanging money, delivering passengers, having a mobile workplace, working alone, working late or early hours, and working in high-crime areas or community settings. Many transit workers who perform their duties on transit vehicles and in revenue facilities, such as vehicle operators, station agents, and maintenance workers, perform their duties in such conditions.

Respondents to FTA's 2021 Request for Information (RFI) on transit worker safety proposed numerous actions applicable across various types of agencies to protect transit workers from assault. These proposals included reducing bus operator involvement in fare and other policy enforcement; increasing frontline worker training on customer service, policy enforcement, and de-escalation; and changing bus designs to use barriers, among other mitigations. Responses also indicated that any new requirements for safety risk mitigations should be broad and flexible enough to work for transit agencies of all sizes and across all modes.

Based on this information, FTA has determined that there is a national-level hazard that transit workers must interact with the public, and, at times, must clarify or enforce agency policies, which presents a risk of transit workers being assaulted on transit vehicles and in revenue facilities.

Previous FTA Efforts To Address Assaults on Transit Workers

In a 2019 Federal Register notice (84 FR 24196) FTA highlighted that in cases where a transit agency identifies hazards associated with assaults on transit operators, the PTASP regulation (49 CFR part 673) requires the agency to use the SMS Safety Risk Management (SRM) processes documented in its Agency Safety Plan (ASP) to assess the associated safety risk and, based on the results of the safety risk assessment, identify safety risk mitigations or strategies as necessary to address the safety risk.

In 2021, concerned about the continued rise in reported assaults on transit workers, FTA analyzed through its internal SRM process the hazard that transit workers must interact with the public, and, at times, must clarify or enforce agency policies. FTA conducted a safety risk assessment to determine the likelihood and severity of two potential consequences of this hazard: assaults on transit workers on board transit vehicles, and assaults on transit workers in revenue facilities.

The SRM process helps FTA determine effective and appropriate risk mitigations, such as technical assistance or regulatory responses, to support transit agencies in cultivating safer environments for their workers and riders. To support this SRM process, FTA established a likelihood scale, severity scale, and risk matrix for conducting a safety risk assessment for each identified potential consequence of a hazard. FTA uses these scales and risk matrix to determine a risk rating that helps FTA, if needed, develop its recommendations for safety risk mitigation.

FTA's Sample Safety Risk Assessment Matrices for Bus Transit Agencies and Sample Safety Risk Assessment Matrices for Rail Transit Agencies illustrate how a safety risk assessment matrix provides a structured approach to assess the likelihood and severity of the consequences of identified hazards, determine if the safety risk is acceptable with existing mitigations, or if additional action is needed, and prioritize hazards based on the safety risk of their potential consequences. FTA's risk matrix is depicted in Figure 1 below.

Potential Consequence 1: Transit Workers Are Assaulted on Transit Vehicles

The first potential consequence of the hazard discussed above is that transit workers are assaulted on transit vehicles. To assess likelihood, FTA reviewed NTD major event reports from 2008 through 2020 that involved assaults on transit workers on transit vehicles throughout the country. Over the twelve-year period of 2008–2019, there were 2,225 major event reports matching the potential consequence, an average of 185 events per year. 1,805 (81 percent) of these occurred at bus modes, with the remaining 420 (19 percent) at rail modes. Due to the frequency of occurrence, the FTA determined a likelihood rating of Very High (5).

To assess severity, FTA reviewed the severity of the events referenced in the likelihood analysis. These events resulted in three fatalities and 2,232 injuries. All three fatalities and 1,806 (81 percent) of injuries resulted from assaults on transit workers on buses, while the remaining 426 injuries (19 percent) resulted from assaults on transit workers on rail vehicles. NTD event data from 2017 and later include information on the severity of injuries when rail modes reported assaults; over 98 percent of injuries from these assaults were minor. Because of this, FTA determined a severity rating of C. While there have been some instances of worker homicides and severe injuries in vehicles, the majority of these events result in a minor injury.

Potential Consequence 2: Transit Workers Are Assaulted in Revenue Facilities

The second potential consequence of the hazard discussed above is that transit workers are assaulted in revenue facilities. To assess likelihood, FTA reviewed NTD major event reports from 2008 through 2020 that involved assaults on transit workers in revenue facilities throughout the country. Over the twelve-year period of 2008–2019, there were 674 major event reports matching this potential consequence, an average of 56.17 events per year. 549 (81 percent) of these occurred at rail modes, with the remaining 125 (19 percent) at bus modes. Due to the rate of occurrence, FTA determined a likelihood rating of Very High (5).

To assess severity, FTA reviewed the severity of the events referenced in the likelihood analysis. These events resulted in two fatalities and 732 injuries. A single fatality and 599 (82 percent) of injuries resulted from assaults on transit workers in rail revenue facilities, while the remaining 133 injuries (18 percent) and one fatality resulted from assaults on transit workers in bus revenue facilities. NTD event data from 2017 and later include information on the severity of injuries from assaults on transit workers in rail revenue facilities; over 95 percent of injuries from these assaults were minor. Because of this, FTA determined a severity rating of C. While there have been some instances of transit worker homicides and severe injuries in revenue facilities, the majority of these events resulted in a minor injury.

Based on the risk ratings of the two identified potential consequences, FTA determined an overall risk rating of 5C, as noted in Figure 2. This risk rating reflects that the safety risk associated with assaults on transit workers is high.

In addition, as part of FTA's overall goal of reducing assaults on transit workers, FTA analyzed data on assaults on transit workers reported to the NTD between 2016 and 2021. Through this analysis, FTA determined that nine transit agencies accounted for 79% of all assaults on transit workers reported to the NTD. FTA issued Special Directives to these agencies on October 4, 2023, to determine whether and how these agencies are addressing safety risk related to assaults on transit workers using their SMS processes and to determine if additional FTA intervention is necessary to mitigate the safety risk related to assaults on transit workers.

FTA reviewed and analyzed the information received from these agencies. Of the nine agencies that received the Special Directives, only four reported the completion of a safety risk assessment prior to issuance of the Special Directives. This is troubling because, as noted above, FTA has previously alerted transit agencies of the need to address the risk of assaults on transit operators when identified through SMS. If these agencies have not completed a safety risk assessment, FTA is concerned that other transit agencies may not have done so either, despite the presence of the risk of assaults on transit workers on the systems they operate.

Safety risk assessment is a required step of a transit agency's SRM process. Moreover, safety risk assessment is a critical tool to understand the risk associated with assaults on transit workers and to help each agency and joint-labor management Safety Committee prioritize and develop safety risk mitigations. The importance of the safety risk assessment step of SRM is further underscored by its use by FTA to assess national-level safety risk. Now, based on the available safety data, FTA's determination of a 5C risk rating reflecting a high nationwide risk of assaults on transit workers, and the results of the Special Directives, FTA has concluded that additional FTA intervention is necessary to address the safety risk related to assaults on transit workers nationwide.

Purpose of General Directive

As discussed above, FTA has determined that there is a national-level hazard that transit workers must interact with the public, and, at times, must clarify or enforce agency policies. FTA has identified that the potential consequences of this hazard are that transit workers may be assaulted on transit vehicles and in revenue facilities. Pursuant to 49 CFR 673.25(b), a transit agency must consider, as a source for hazard identification, data and information provided by FTA.

FTA has determined that the national-level hazard and potential consequences discussed above constitute an unsafe condition or practice presenting a risk of death or personal injury for transit workers. Accordingly, pursuant to 49 CFR 670.25, FTA proposes issuing a General Directive that directs agencies to take action to address the identified national-level hazard and the potential consequences.

FTA proposes that the General Directive require each transit agency that is required to have an Agency Safety Plan (ASP) under the PTASP regulation (49 CFR part 673) to use the Safety Risk Management (SRM) processes documented in its ASP to conduct a safety risk assessment related to assaults on transit workers on the public transportation system it operates. FTA is proposing that if a transit agency has conducted a safety risk assessment related to assaults on transit workers in the twelve months preceding the date of issuance of the final General Directive, and if the transit agency continues to believe that the results of that safety risk assessment are relevant, the transit agency need not conduct a new assessment. FTA also proposes to require each transit agency to use the SRM processes documented in its ASP to identify safety risk mitigations or strategies necessary as a result of the agency's safety risk assessment. As required by the Bipartisan Infrastructure Law at 49 U.S.C. 5329(d)(5), each transit agency serving a large urbanized area must involve the joint labor-management Safety Committee when identifying safety risk mitigations to reduce the likelihood and severity of consequences identified through the agency's safety risk assessment. The General Directive would also require each transit agency to provide information to FTA on how it is assessing, mitigating, and monitoring the safety risk associated with assaults on transit workers within 60 days of issuance of the final General Directive. FTA notes that this proposed directive is intended to work in conjunction with OSHA protections and is not intended to preempt OSHA's standards or other enforcement authority.

FTA is proposing this approach as it is grounded in SMS principles and methods, which FTA has adopted as the basis for enhancing public transportation safety. See 49 CFR 670.3. Further, FTA believes this approach will ensure that each transit agency is taking a formal look at the safety risk related to assaults on transit workers on their system. FTA also believes this approach will contribute to transit agencies and their joint labor-management Safety Committees identifying scalable and effective mitigations across the range of services they provide and situations that contribute to the risk of assaults on transit workers. FTA proposes that each transit agency provides FTA information on how it is assessing, mitigating, and monitoring the safety risk associated with assaults on transit workers, which FTA may use to inform future Federal action to protect transit workers.

FTA is proposing to issue this General Directive to all transit agencies required to have an ASP under the PTASP regulation because FTA has determined that the hazard that transit workers must interact with the public, and, at times, must clarify or enforce agency policies, exists at transit agencies of all sizes and across all modes of public transportation, not just those in large urbanized areas.

The proposed General Directive contains proposed binding obligations, which 49 U.S.C. 5334(k) defines as “a substantive policy statement, rule, or guidance document issued by the Federal Transit Administration that grants rights, imposes obligations, produces significant effects on private interests, or effects a significant change in existing policy.” Under 49 U.S.C. 5334(k) FTA may issue binding obligations if it follows notice and comment rulemaking procedures under 5 U.S.C. 553.

FTA requests public comment on this proposed General Directive, which is available on the FTA website at https://www.transit.dot.gov/regulations-and-guidance/safety/fta-general-directives and in Docket No. FTA–2023–0032. Following an analysis of the public comments, FTA will publish a notice in the Federal Register that includes both a response to comments and announces a final General Directive or a statement rescinding or revising the proposed General Directive.

Authority: 49 U.S.C. 5329; 49 CFR 1.91, 670.25.