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Legal Issues in Public Transit Emergency Planning and Operation (2013)

Chapter: II. TRANSIT EMERGENCY PLANNING FOUNDATIONS

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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
×
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"II. TRANSIT EMERGENCY PLANNING FOUNDATIONS." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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4 and reroutes. These are more mundane “emer- gencies” that operators have dealt with since the inception of public transit service. They are understood to be within the scope of transit’s traditional daily duties and are not the subject of planning that ties the transit and homeland security worlds to each other. II. TRANSIT EMERGENCY PLANNING FOUNDATIONS A. Key Homeland Security Planning Laws, Regulations, and Guidance Table 1 provides a list of laws, regulations, issues, and events in the fast-developing home- land security industry with relevance to the transit industry. It is presented in chronologi- cal order to assist transit professionals in un- derstanding how the industry has evolved since 2001.

5 KEY HOMELAND SECURITY PLANNING LAWS, REGULATIONS, PROGRAMS, AND EVENTS 11/1988 Robert T. Stafford Act en- acted Created disaster and hazard mitigation public assis- tance programs. 9/2001 Terrorist attacks on United States 11/2001 Aviation & Transportation Security Act enacted Security oversight of USDOT administrations trans- ferred to the Transportation Security Administration (TSA). 11/2002 Homeland Security Act of 2002 enacted DHS created. TSA, the Federal Emergency Manage- ment Agency (FEMA), and other federal agency author- ity transferred to DHS. 2/2003 Homeland Security Presi- dential Directive 5 (HSPD- 5) Management of Domestic Incidents released Directs the establishment of a single, comprehensive national incident management system that covers the prevention, preparation, support, response, and recovery from terrorist attacks, major disasters, and other emer- gencies. 12/2003 Homeland Security Presi- dential Directive 8 (HSPD- 8) National Preparedness released Tasks the Secretary of Homeland Security with devel- oping National Preparedness Guidelines to build na- tional capabilities, and coordinate preparedness activi- ties, between federal, state, tribal, and local governments; the private sector; and citizens. 3/2004 National Incident Man- agement System (NIMS) re- leased Structured template/tool that includes the Incident Command System (ICS) to be used nationwide to respond to disasters and/or terrorist attacks. HSPD-5 requires all federal, state, local, and tribal agencies to adopt NIMS. 7/2004 9/11 Commission Report released Contained 41 homeland security recommendations, including the setting of national preparedness priorities, and mandated the adoption of ICS to guide emergency response. 1/2005 National Response Plan released The National Response Plan (NRP) provided a frame- work for a unified national response to all disasters and emergencies. Included the Emergency Support Function structure and based on NIMS. 8/2005 Hurricane Katrina landfall 10/2006 Post-Katrina Emergency Management Reform Act enacted DHS reorganization restoring FEMA authority. FEMA to lead and support risk-based, comprehensive emergency management system. 1/2008 National Response Framework (NRF) released Replaces the National Response Plan. Essentially same as NRP, but according to DHS, name change was warranted as the NRP was not a plan per se. 3/2011 Presidential Policy Direc- tive 8 (PPD-8) National Pre- paredness released Replaces HSPD-8. Capabilities-based planning in- stead of scenario-based. Mitigation planning along with prevention, protection, response, and recovery activities. Table 1. Homeland Security Laws, Regulations, Programs, and Events.

6 1. Robert T. Stafford Disaster Assistance Act In 1988, Congress passed the Robert T. Staf- ford Disaster Relief and Emergency Assistance Act (“Stafford Act”).3 Administered by FEMA, the Stafford Act is the primary federal disaster relief funding mechanism in the United States today. It provides for legislated cost-sharing requirements for public assistance funding and encourages hazard mitigation planning through grant programs.4 When local and state resources cannot adequately address a disas- ter, the governor of a state may request a presidential disaster declaration that legally triggers the mobilization of federal resources to assist in a response.5 Such resources will be marshaled and directed to state and local re- sponse efforts pursuant to activities guided by the NRF (see below). 2. The Aviation and Transportation Security Act In the aftermath of the attacks on the United States on September 11, 2001, Presi- dent Bush signed into law the Aviation and Transportation Security Act (ATSA)6 on No- vember 19, 2001, creating the TSA within the USDOT. While the primary focus of the ATSA was aviation security and the establishment of a federalized workforce of air passenger secu- rity screeners, TSA was also authorized to oversee the security of all other modes of trans- portation under USDOT.7 This authority in- cludes the ability of TSA to assess threats to transportation8 and to develop policies, strate- gies, and plans to address identified threats to transportation security.9 3. The Homeland Security Act of 2002 The Homeland Security Act of 2002 (HSA)10 was passed on November 25, 2002, to restruc- ture various aspects of the federal government following the September 11, 2001, terrorist attacks. Pursuant to the HSA, the DHS was created to consolidate a number of existing 3 Pub. L. No. 93-288, 88 Stat. 143 (1988) (codified at 42 U.S.C. §§ 5121 et seq.(2013). 4 42 U.S.C. § 5131 (2013). 5 42 U.S.C. § 5191 (2013). 6 Pub. L. No. 107-71, 115 Stat. 597 (2001) (codified at 49 U.S.C. §§ 114 et seq. (2013)). 7 Id. § 114(d)(2). 8 Id. § 114(f)(2). 9 Id. § 114(f)(3). 10 Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified at 6 U.S.C. §§ 101 et seq. 2013). agencies with security, intelligence-gathering, and counter-terrorism functions. Working closely with state and local officials, other fed- eral agencies, and the private sector, the DHS mission is to ensure that proper steps are taken to protect high-risk assets in the United States. DHS became responsible for the com- prehensive evaluation of vulnerabilities of America’s critical infrastructure. This list of critical assets included the nation’s transporta- tion networks (air, road, rail, ports, water- ways), and as such the functions of TSA were transferred to DHS.11 Additionally, FEMA was incorporated into DHS due to its mission to respond to disasters in the United States, re- gardless of their cause. FEMA provides leader- ship in building a comprehensive national sys- tem of emergency preparedness, protection, disaster response, recovery, and mitigation.12 The Post-Katrina Emergency Management Reform Act (described below) amended the HSA with respect to the organizational struc- ture, authorities, and responsibilities of FEMA and the FEMA Administrator. 4. Homeland Security Presidential Directive-5 (HSPD-5) HSPD-5 was issued by President Bush on February 28, 2003, to improve the manage- ment of domestic incidents by establishing a single, comprehensive national incident man- agement system. Pursuant to the HSA, the Secretary of DHS became responsible for coor- dinating federal emergency operations within the United States through the incorporation of FEMA into DHS. Federal emergency opera- tions include preparing for, responding to, and recovering from terrorist attacks, major disas- ters, and other emergencies. Pursuant to HSPD-5, DHS coordinates federal resources when any one of several conditions occurs:13 • A federal department or agency requests its assistance. • The resources of state and local authori- ties are overwhelmed and they request federal assistance. • More than one federal department or agency is substantially involved in responding to an incident. 11 Id. §§ 201–203. 12 Id. §§ 311–321. 13 HSPD-5, para. 4, available at http://www.fas.org/irp/offdocs/nspd/hspd-5.html. Accessed July 1, 2013.

7 • The President directs the Secretary to as- sume responsibility for managing the domestic incident. HSPD-5 also recognized the roles that state, tribal, and local governments; nongovernmen- tal organizations; and the private sector play in managing incidents. Initial responsibility for managing domestic incidents generally falls on state and local authorities. When their re- sources are overwhelmed, or when federal property is involved, the federal government provides assistance. In order to provide a con- sistent, coordinated, nationwide approach for emergency operations across all levels of gov- ernment, HSPD-5 directed DHS to develop and administer NIMS and a NRP. Together, the NIMS and NRP were intended to provide an approach for federal, state, and local govern- ments to effectively prepare for, respond to, and recover from domestic incidents, regard- less of cause, size, or complexity. 5. NIMS Pursuant to the mandates of HSPD-5, DHS created a structured program to be used na- tionwide for both governmental and nongov- ernmental agencies to respond to disasters and terrorist attacks at the federal, state, tribal, and local levels of government. NIMS provides a consistent, flexible, and adjustable national template upon which government and private entities can work together to manage domestic incidents regardless of their cause, size, loca- tion, or complexity. The deliberations of the National Commis- sion on Terrorists Attacks Upon the United States14 (more commonly known as the “9/11 Commission”) had an important impact on the formation of HSPD-5 and the parameters of the program that would become NIMS. In its 2004 final report, the Commission recommended that emergency response agencies nationwide adopt the ICS, a cornerstone of NIMS.15 ICS, developed to overcome inefficiencies in large- scale responses to wildfires in the early 1970s, addressed multi-jurisdictional coordination and response issues, including: • A lack of sharing reliable incident infor- mation between parties. 14 Authorized pursuant to Pub. L. No. 107-306, tit. VI, 116 Stat. 2383 (2002). 15 NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT, ch. 12, at 397 (2004), available at http:// www.9-11commission.gov/report/911Report.pdf. Accessed July 1, 2013. • Inadequate and incompatible communica- tions. • A lack of a structure for coordinated plan- ning between agencies. • Unclear lines of authority. • Terminology differences between agencies. Consequently, ICS would ultimately: • Become a scalable, flexible coordinating framework and tool to meet the needs of inci- dents of any kind and size and have the ability to be tailored to the agencies using it. • Be usable on a day-to-day basis for routine situations as well as for major emergencies. • Allow personnel from a variety of agencies and diverse geographic locations to rapidly meld into a common management structure. To avoid confusion, DHS is clear to indicate that NIMS is not a plan. NIMS rather is a dy- namic tool that incorporates ICS to assist agen- cies in planning and coordinating intra- and inter-organizational operations to respond to all types of hazards and threats. Moreover, it sets forth preparedness concepts and princi- ples, describes a means for managing commu- nications and operations, and provides stan- dard resource management procedures. For state and local agencies, NIMS is a guidance tool to enhance existing emergency response and planning operations, marshal personnel and resources within a tailored emergency management structure (for traditional chain- of-command organizations like law enforce- ment as well as other entities like transit sys- tems), and provide advice on how to work with regional stakeholders when circumstances ne- cessitate.16 HSPD-5 required all federal agencies to adopt NIMS and to use it in their individual domestic incident management and emergency prevention, preparedness, response, recovery, and mitigation programs and activities. The directive also required federal departments to make the adoption of NIMS by state, tribal, and local organizations a condition for federal preparedness assistance beginning in fiscal year 2005. 16 See Department of Homeland Security, Na- tional Incident Management System, available at http://www.fema.gov/national-incident-management- system. Accessed July 1, 2013.

8 6. NRP and NRF NRP is a specific application of NIMS and is the successor to the Federal Response Plan.17 HSPD-5 mandated that a NRP plan be devel- oped to integrate “federal government domestic prevention, preparedness, response, and recov- ery plans into one all-discipline, all-hazards plan.”18 As per HSPD-5, the NRP states that all incidents are initially and primarily handled at the lowest possible organizational and jurisdic- tional level. Police, fire, public health and medical emergency management, and other personnel such as transit operators are respon- sible for incident management at the local level. For those events that rise to the level of an “Incident of National Significance”19 (as op- posed to a snow storm or other subcatastrophic event), DHS would provide the operational and/or resource coordination for federal sup- port to on-scene incident command structures. The NRP includes planning assumptions, roles and responsibilities, concepts of operations, and incident management actions. As part of this structure, the NRP features the Emer- gency Support Function (ESF) mechanism to coordinate various capabilities and resources and to bundle and funnel them to local, tribal, state, and other responders. There are 15 of these ESFs (see Appendix A for full listing and coordinating federal agencies). Local public transportation is supported on the federal level via ESF 1 Transportation with USDOT as the coordinating agency. Resources marshaled by ESF 1 will be directed to local recipients through coordination with state emergency management agencies. Annexes to the NRP provided more detailed information on ESFs, such as administrative requirements. Incident annexes address contingency or hazard situa- tions that required specialized applications of 17 See, e.g., Department of Homeland Security, National Response Plan (Dec. 2004), available at http://www.au.af.mil/au/awc/awcgate/nrp/. Accessed July 1, 2013. 18 HSPD-5, para. 16, available at http://www.fas.org/irp/offdocs/nspd/hspd-5.html. Accessed July 1, 2013. 19 What qualifies as an “Incident of National Sig- nificance” and consequently Stafford Act relief fund- ing is discussed in U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-06-442T, HURRICANE KATRINA: GAO’S PRELIMINARY OBSERVATIONS REGARDING PREPAREDNESS, RESPONSE, AND RECOVERY 7 (2006), and clarified in the Post-Katrina Emergency Man- agement Reform Act of 2006, Pub. L. No. 109-295, 120 Stat. 1355 (PKEMRA). the NRP for Incidents of National Significance (See Figure 1, below).

9 Figure 1. National Response Plan.20 NIMS provided the doctrine, concepts, prin- ciples, terminology, and organizational proc- esses needed for effective, efficient, and col- laborative incident management at all levels. Again, NIMS did not constitute an operational incident management or resource allocation plan but rather a tool to structure, manage, and marshal organizations, their personnel, and resources to handle incident response. The NRP provided the coordinating structure and mechanisms for national-level policy and op- erational direction for federal support to state, local, and tribal incident managers; federal-to- federal support; and for exercising direct fed- eral authorities and responsibilities as appro- priate under the law.21 20 Figure 1 borrowed from JOHN N. BALOG, ET AL., 7 PUBLIC TRANSPORTATION SECURITY: PUBLIC TRANSPORTATION EMERGENCY MOBILIZATION AND EMERGENCY OPERATIONS GUIDE (TCRP Report 86, § 2, Transportation Research Board, 2005). This docu- ment contains a thorough review of these distinctions and implementation of the NRF in the public trans- portation context. 21 HSPD-5, para. 16(a), available at The NRP would ultimately be succeeded by the NRF in 2008.22 The NRF is based directly on the NRP and retains much of NRP’s con- tent. The title was changed based on public comment that indicated that the NRP, like NIMS, was not a plan, but rather a construct to coordinate national incident management.23 According to FEMA, the document was also modified to improve its usability and to incor- porate suggestions from stakeholders, best practices, and lessons learned from exercises and responses to events such as Hurricane Katrina.24 http://www.fas.org/irp/offdocs/nspd/hspd-5.html. Accessed July 1, 2013. 22 See Federal Emergency Management Agency, National Response Framework Web site at http://www.fema.gov/national-response-framework. Accessed July 1, 2013. 23 Federal Emergency Management Agency, Na- tional Response Framework, Frequently Asked Ques- tions 3 (2008), available at https://www.fema.gov/ pdf/emergency/nrf/NRF_FAQ.pdf. 24 Id.

10 7. Homeland Security Presidential Directive-8 (HSPD-8) HSPD-8 was issued in December 2003 as a companion to HSPD-5. Pursuant to HSPD-8, DHS was to coordinate the development of a national domestic all-hazards preparedness goal “to establish measurable readiness priori- ties and targets that appropriately balance the potential threat and magnitude of terrorist attacks and large scale natural or accidental disasters with the resources required to pre- vent, respond to, and recover from them.”25 The goal was also to include metrics and standards for assessments to gauge the nation’s overall preparedness to respond to major events. To implement the directive, DHS developed the National Preparedness Guidelines using 15 emergency National Planning Scenarios, 12 of which were terrorist-related with the remain- ing 3 addressing major hurricanes, major earthquakes, and an influenza pandemic. The planning scenarios were intended to exemplify the scope and magnitude of large-scale, catas- trophic emergency events for which the nation needed to be prepared and to form the basis for identifying the capabilities needed to respond to a wide range of large-scale emergency events. These comprehensive scenarios focused on the consequences that first responders would have to address. Using these scenarios, DHS developed a list of over 1,600 discrete tasks, of which 300 were identified as critical. DHS then identified 36 target capabilities to provide guidance to fed- eral, state, and local first responders on the capabilities they need to develop and maintain. That list was subsequently refined, and DHS released a revised draft list of 37 capabilities. With respect to public transportation, numer- ous tasks were identified to guide localities to ensure that appropriate transportation corri- dors would be maintained or established to move people, animals, and resources in re- sponse to a disaster.26 These capabilities did not address transit on an operations level but rather on the strategic level. 25 HSPD-8, para. 6, available at https://www.fas.org/irp/offdocs/nspd/hspd-8.html. Accessed July 1, 2013. 26 DEPARTMENT OF HOMELAND SECURITY, TARGET CAPABILITIES LIST: A COMPANION TO THE NATIONAL PREPAREDNESS GUIDELINES 377–93 (2007), available at http://www.fema.gov/pdf/government/training/tcl. pdf. Accessed July 1, 2013. 8. Post-Katrina Emergency Management Reform Act of 2006 The Post-Katrina Emergency Management Reform Act of 200627 (PKEMRA) was enacted on October 4, 2006, to address various short- comings identified in the preparation for and response to Hurricane Katrina. PKEMRA mandated that the President develop a set of national policies to guide preparedness for these hazards with the goal of reducing or pre- venting potentially devastating consequences. Specifically, improved capabilities were needed to effectively respond to catastrophic disasters, particularly in the areas of situational assess- ment and awareness, emergency communica- tions, evacuations, search and rescue, logistics, and mass care and sheltering. Moreover, hav- ing had much of FEMA’s autonomy transferred to DHS leadership through the Homeland Se- curity Act, PKEMRA restored and enhanced FEMA’s responsibilities within DHS. PKEMRA mandated that FEMA lead and support the development of a risk-based, comprehensive emergency management system of prepared- ness, protection, response, recovery, and miti- gation. PKEMRA also required FEMA to develop guidelines to accommodate the disabled in pub- lic shelters,28 and take into account persons with limited English proficiency in emergency planning.29 9. Presidential Policy Directive-8 (PPD-8) and the National Preparedness Goal The PKEMRA mandated that the President develop a set of national policies to guide all- hazards preparedness with the goal of reducing or preventing potentially devastating conse- quences. On March 30, 2011, President Obama issued PPD-8: National Preparedness, initiat- ing the development of national preparedness policies that are intended to fulfill many as- pects of the mandate. Consistent with PKEMRA, the purpose of PPD-8 is to “strength[en] the security and resilience of the United States through systemic preparation for the threats that pose the greatest risk to the security of the Nation, including acts of terror- ism, cyber attacks, pandemics, and catastro- phic natural disasters.”30 Through the devel- 27 Pub. L. No. 109-295, 120 Stat. 1355 (2006). 28 Pub. L. No. 109-295 § 689(a), 120 Stat. 1355, 1448 (2006). 29 Pub. L. No. 109-295 § 616, 120 Stat. 1355, 1452. 30 PPD-8, para. 1, available at http://www.dhs. gov/presidential-policy-directive-8-national- preparedness. Accessed July 1, 2013.

11 opment of a National Preparedness Goal (NPG), federal, state, and local agencies were directed to focus on the development of core capabilities and resilience, not necessarily based on specific catastrophic scenarios as pre- viously recommended. PPD-8 rescinded HSPD- 8. 10. Pets Evacuation and Transportation Standards Act of 2006 During Hurricane Katrina, many Katrina evacuees and disaster victims were forced to leave their pets behind when they evacuated their homes because no government provisions had been made to evacuate pets along with their families.31 Many pet owners, knowing their animals could not accompany them, chose to stay in their homes with their pets, further complicating human rescue efforts.32 Two days after the adoption of PKEMRA, Congress passed the Pets Evacuation and Transportation Standards Act (PETS).33 PETS amends the Robert T. Stafford Disaster Relief and Emergency Assistance Act and mandates that FEMA’s preparedness plans within the NRF “take into account the needs of individu- als with pets and service animals prior to, dur- ing, and following a major disaster or emer- gency.”34 PETS: • Grants FEMA the authority to approve the standards of these plans and assist state and local communities in developing plans.35 • States that the FEMA Director may make financial contributions on the basis of pro- grams and projects approved by the Director to state and local authorities for animal emer- gency preparedness purposes. This includes the procurement, leasing, construction, or renovation of emergency shelter facilities and materials that will accommodate people with pets and service animals.36 • Gives FEMA the authority to provide es- sential assistance to individuals with pets and 31 Sara Ivry, An Outpouring for Other Victims, the Four-Legged Kind, N.Y. TIMES, Nov. 14, 2005, avail- able at http://www.nytimes.com/2005/11/14/ giving/14animal.html. Accessed July 1, 2013. 32 Malcolm Gay, Beloved Pets, Displaced by Floodwaters, Find Temporary Shelter in Iowa, N.Y. TIMES, June 30, 2008, available at http://www. nytimes.com/2008/06/30/us/30flood.html?_r=0. Accessed July 1, 2013. 33 Pub. L. No. 109-308, 120 Stat. 1725 (2006). 34 42 U.S.C. § 5196b(2)(b)(3) (2013). 35 42 U.S.C. § 5196b(2)(g) (2013). 36 42 U.S.C. § 5196(2) (2013). service animals for the provision of care, res- cue, sheltering, and essential needs to such pets and animals.37 B. Key Transit Planning Laws, Regulations, and Guidance Table 2 below provides a list of key transit laws, regulations, and issues with respect to transit emergency planning. The table covers rail transit, commuter rail, transit bus, para- transit, and passenger ferries. Unlike for the prior homeland security summaries, the chro- nology of these laws, regulations, and issues is less important to this analysis and therefore they are not presented in such order. 37 42 U.S.C. § 5170b(a)(3)(J)(i) & (ii) (2013).

12 Table 2. Transit Emergency Planning Laws, Regulations, and Programs. KEY TRANSIT EMERGENCY PLANNING LAWS, REGULATIONS, AND PROGRAMS FTA Fixed Guideway Rail State Safety Oversight Created State Safety Oversight entities to implement safety and security review programs for rail transit sys- tems. FTA Project Management Oversight Mandated the development of a Project Management Plan and a Safety and Security Management Plan for ma- jor capital projects. FTA National Public Transportation Safety Plan MAP-21 enables FTA to regulate safety and security of all modes. FTA Key Funding Mechanisms Various sections of the United States Code for Urban Area, Capital, Elderly and Disabled, Rural, and Crime Prevention and Security investments. DHS and USDOT Coordination MAP-21 required DHS to coordinate with USDOT if a proposed DHS rule will affect the safety of public transpor- tation design, construction, or operations. FTA Charter Bus Rule Exemption Allows transit buses to operate outside their jurisdic- tions in times of emergency. FTA Emergency Procedures for Public Transit Process to waive FTA regulations in times of emergency. FRA Passenger Train Emergency Preparedness Mandates emergency preparedness planning and train- ing. FRA Emergency Event Waivers Process to waive FRA regulations in times of emergency. Vessel and Facility Security Emer- gency Preparedness and Response Con- tingency Plans Mandates the development of maritime security officer positions and emergency response plans, and that opera- tors conduct training and threat assessments. Americans with Disabilities Act Mandates the development of reasonable accommoda- tions for persons with disabilities to access and use public facilities. Executive Order 13347—Individuals with Disabilities and Emergency Prepar- edness Calls for a coordinated federal effort to ensure ADA mandates are implemented for emergency situations and response. Transportation for Individuals With Disabilities: Passenger Vessels Mandates the development of reasonable accommoda- tions for persons with disabilities to access and use vessels, including response assistance. USDOT Environmental Justice Order 5610.2(a) Describes the process for incorporating environmental justice principles into all existing programs, policies, and activities of all modes. USDOT Policy Guidance Concerning Recipient’s Responsibilities to Limited English Proficient Guidance for all modal agencies to consider service planning and accommodations for Limited English Profi- cient persons. Long-Term Capital Planning Metropolitan Planning Organizations and state trans- portation planners are encouraged to consider security is- sues within their capital programming activities.

13 1. FTA Rail Fixed Guideway State Safety Oversight In response to public concern regarding the potential for catastrophic accidents and inci- dents on rail transit systems, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA)38 added Section 28 to the Federal Transit Act.39 This section required FTA to issue a rule to establish state-managed over- sight programs for rail transit safety. On De- cember 27, 1995, FTA published its “Rail Fixed Guideway Systems: State Safety Oversight” regulations, now more commonly referred to as State Safety Oversight or Part 659.40 Only those states with Rail Fixed Guideway Systems meeting the definition specified in Part 659 must comply with FTA’s State Safety Over- sight rule, including “as determined by FTA any light, heavy, or rapid rail system, mono- rail, inclined plane, funicular, trolley, or auto- mated guideway that: • Is not regulated by the Federal Railroad Administration; and • Is included in FTA’s calculation of fixed guideway route miles or receives funding un- der FTA’s formula program for urbanized ar- eas41; or • Has submitted documentation to FTA in- dicating its intent to be included in FTA’s cal- culation of fixed guideway route miles to re- ceive funding under FTA’s formula program for urbanized areas.”42 The key provisions of Part 659 include the following requirements: • The designation by the state of an over- sight agency (other than the transit system being regulated) 43 to create safety and security program standards and monitor and assess compliance with these standards by rail transit systems under its jurisdiction.44 • The requirement to develop a system 38 Pub. L. No. 102-240, 105 Stat. 1914 (1991). 39 Id. 40 49 C.F.R. pt. 659, authorized by 49 U.S.C. § 5330. 41 49 U.S.C. § 5336 (2013). 42 Id.; 49 C.F.R. § 659.5. Includes systems built entirely with local and state funds, but that will re- ceive formula funding for operations based on their submission of fixed guideway route miles to FTA. 43 49 C.F.R. § 659.9. 44 49 C.F.R. § 659.15. safety program plan (SSPP)45 and a system security plan,46 also known as a Security and Emergency Preparedness Plan (SEPP). These plan requirements and associated guidance represent the core principles and approaches of FTA with respect to revenue service, safety, security, and emergency management plan- ning. The SSPP is a key management document and one of the core FTA standards by which FTA grantees describe and detail their safety and emergency management philosophies, pro- grams, and activities. At its essence, an SSPP is a statement of an agency’s risk management philosophy and approaches to reduce risk (see additional information on the SSPP and re- lated documents in Section III below). For the most part, the parameters of the SSPP as it is required for rail fixed guideway systems today by the FTA were developed by the American Public Transportation Association (APTA) in the 1980s. APTA developed its program based on Military Standard 882B system safety prin- ciples used for the military’s transit safety re- view program. In general, the SSPP requires that a transit system indicate essential pro- grammatic areas that govern system safety, including, among others, management organi- zation, management roles and responsibilities, risk reduction processes, policies and proce- dures, training and exercises, configuration management, safety certification, and docu- ment control and maintenance. The SEPP, Project Management Plan (PMP), and Safety and Security Management Plan (SSMP) (de- scribed below) generally follow the same gen- eral principles and document organization as the SSPP. They each describe approaches to control risk and promote continuous improve- ment through periodic analysis. While the FTA SSPP standards as they exist today have ex- panded upon the APTA template, FTA’s pro- gram is still basically what APTA built in the 1980s. 2. FTA Project Management Oversight FTA created the Project Management Over- sight (PMO) 47 requirements to encourage effi- ciency and cost-effectiveness in the capital con- 45 49 C.F.R. § 659.17. Specific requirements at 49 C.F.R. § 659.19. 46 49 C.F.R. § 659.21. Specific requirements at 49 C.F.R. § 659.23. 47 49 C.F.R. pt. 633, authorized by 49 U.S.C. § 5327.

14 struction process for major capital projects. Major capital projects are defined as projects that: • Involve the construction of a new fixed guideway or extension of an existing fixed guideway; • Involve the rehabilitation or moderniza- tion of an existing fixed guideway with a total project cost in excess of $100 million; or • The FTA Administrator determines it is a major capital project because the project man- agement oversight program will benefit specifi- cally the agency or the recipient.48 The PMO requirements allow for the moni- toring of budget, schedule, and progress of an agreed-upon project design and such design’s construction.49 The details of a grantee’s project approach, design, schedule, budget, project personnel, and project processes and proce- dures are to be detailed in a PMP for the pro- ject to be funded.50 As part of the PMP, FTA also requires that an SSMP be developed and implemented.51 The PMP and SSMP can be considered pre-revenue service cousins to the SSPP and the SSEP, respectively (explained more thoroughly in Section III). 3. FTA National Public Transportation Safety Plan Section 532952 of the Moving Ahead for Pro- gress in the 21st Century Act (MAP-21) au- thorizes the Secretary of Transportation to inspect and audit all public transit systems with respect to safety, to make reports and issue directives, to investigate accidents and incidents, and, among others, to issue regula- tions to carry out transit safety provisions. The Secretary is mandated to develop safety and security performance criteria for all modes and has the power to request corrective action plans if deficiencies are found and impose pen- alties for noncompliance with findings. As rail fixed guideway systems, commuter rail, and 48 49 C.F.R. § 633.5. 49 Id. 50 49 C.F.R. § 633.21, contents detailed in 49 C.F.R. § 633.25. 51 SSMP implementation and implementation cri- teria are detailed in FTA, FTA Circular 5800.1: Safety and Security Management Guidance for Major Capital Projects (2007), available at http://www.fta.dot.gov/legislation_law/12349_6930. html. Accessed July 1, 2013. 52 Pub. L. No. 112-141, § 5329, 126 Stat. 405 (2012). ferries already have many applicable safety, security, and emergency management regula- tory frameworks guiding their operations, the primary modes to be affected by any new rules pursuant to the National Public Transporta- tion Safety Plan (NPTSP) will be transit bus and paratransit systems. To date, no additional safety and security performance criteria for rail have been promulgated. 4. FTA Key Funding Mechanisms FTA funds are distributed to recipients by formula through specific designations within the MAP-21 authorization law or on a discre- tionary basis through individual grant pro- grams. FTA works in partnership with states and other grant recipients to administer its programs and provide financial assistance, policy direction, technical expertise, and some oversight. Key funding programs include the following: • The Urbanized Area Formula Grant Pro- gram53 makes funding available to urbanized areas and to states for public transportation capital projects, planning, and operating assis- tance for equipment and facilities in urbanized areas and for transportation-related planning. Funds are allocated based on a multi-tiered formula that separates urban areas with popu- lations under 200,000 from those with popula- tions of 200,000 or more. Each fiscal year, re- cipients will expend at least 1 percent of the amount they receive on security-related pro- jects54 unless they have decided such expenses are not necessary.55 • The New Starts Program56 provides funds for construction of new fixed guideway systems or extensions to existing fixed guideway sys- tems. These grants are awarded for specific projects by congressional directive based on FTA recommendations. Funds may be provided only to state and local governmental authori- ties. • The Rail Fixed Guideway Modernization Program57 makes federal resources available to modernize or improve existing fixed guideway systems. Funds are first apportioned to urban- ized areas according to a seven-tiered formula. • The Special Needs of Elderly Individuals and Individuals with Disabilities Program58 53 49 U.S.C. § 5307 (2013). 54 49 U.S.C. § 5307(c)(1)(J)(i) (2013). 55 49 U.S.C. § 5307(c)(1)(J)(ii) (2013). 56 49 U.S.C. § 5309 (2013). 57 49 U.S.C. § 5309 (2013). 58 49 U.S.C. § 5310 (2013).

15 provides funding to states for the purpose of assisting state or local authorities, private non- profit groups, or public transit systems in meeting the transportation needs of elderly individuals and individuals with disabilities. The Secretary may make grants to 1) public transportation projects designed to meet the special needs of seniors and the disabled when current transportation services are unavail- able, insufficient, or inappropriate for meeting these needs; 2) public transportation projects that exceed the requirements of the Americans with Disabilities Act (see below); 3) public transportation projects that improve access to fixed route service and decrease reliance by individuals with disabilities on complementary paratransit; and 4) alternatives to public transportation that assist seniors and indi- viduals with disabilities with transportation.59 Funds are first apportioned to states based on a formula administered by the Secretary of Transportation that considers the number of elderly individuals and individuals with dis- abilities in each state. • The Non-Urbanized Area Formula Grant Program60 provides funding to states and In- dian tribes for the purpose of supporting public transportation capital projects and operating costs for equipment and facilities in rural areas with populations of fewer than 50,000. Funds are first apportioned to states and Indian tribes based on a formula provided in MAP- 21; then states and Indian tribes may submit applications to FTA. Grant recipients may allo- cate funds to state or local governmental au- thorities, or an operator of public transporta- tion or intercity bus service. In addition to the provisions in the Urban- ized Area Formula Grant Program, with re- spect to the funding of security projects, FTA may make capital grants to public transporta- tion systems for crime prevention and secu- rity.61 59 49 U.S.C. §§ 5310(b)(1)(A)-(D) (2013). 60 49 U.S.C. § 5311 (2013). 61 49 U.S.C. § 5321 (2013). Metropolitan and Statewide Transportation Capital Planning.—The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) of 200562 established new and revised requirements for statewide and metropolitan transportation plans and programs, as well as the underlying planning processes. For the first time, federal law included security issues as a parameter of metropolitan63 and statewide planning64 proc- esses. As such, planners are now encouraged to consider security (and presumably emergency management) issues when making long-term capital planning decisions. 5. DHS and USDOT Coordination MAP-21 mandated that the Secretary of Homeland Security consult with the Secretary of Transportation before the Secretary of Homeland Security issues a rule or order that the Secretary of Transportation determines affects the safety of public transportation de- sign, construction, or operations.65 6. FTA Charter Bus Rule Exemption FTA allows for its grantees to provide char- ter service, generally defined as: • Transportation provided by a recipient at the request of a third party for the exclusive use of a bus or van for a negotiated price but does not include demand response service to individuals;66 • Service that is not part of the transit pro- vider's regularly scheduled service, or is offered for a limited period of time;67 • Service for which a premium fare is charged that is greater than the usual or cus- tomary fixed route fare;68 and • Service that is paid for in whole or in part by a third party.69 The FTA Charter Bus Rule Exemption al- lows for a recipient to respond to an emergency declared by the President, governor, or mayor. Under these circumstances, a charter operator may go outside of its geographic service area, defined as “the entire area in which a recipient 62 Pub. L. No. 109-59, 119 Stat. 1144 (2005). 63 49 U.S.C. § 5303(h)(1)(c) (2013). 64 49 U.S.C. § 5304(d)(1)(c) (2013). 65 49 U.S.C. § 5329(i) (2013). 66 49 C.F.R. § 604.3(c)(1). 67 49 C.F.R. § 604.3(c)(1)(iii). 68 49 C.F.R. § 604.3(c)(2)(i). 69 49 C.F.R. § 604.3(c)(2)(ii).

16 is authorized to provide public transportation service under appropriate local, state and fed- eral law.”70 The exemption also allows for waiver of the charter rules for actions taken prior to a formal declaration to respond to an emergency situation. If the emergency lasts more than 45 days, the recipient shall follow the FTA’s general rules waiver procedures (see FTA Emergency Procedures for Public Transit below). The Charter Bus Rule Exemption does not apply to a recipient transporting its em- ployees, other transit system employees, tran- sit management officials, transit contractors and bidders, and government officials and their contractors and official guests for emergency preparedness planning and operations.71 Recipients of formula grants for special needs of elderly individuals and individuals with disabilities72 and formula grants for rural or other nonurbanized areas73 are not subject to the Charter Bus Rule.74 7. FTA Emergency Procedures for Public Transit These procedures apply when the President has declared a national or regional emergency, or when a state governor or the Mayor of the District of Columbia has declared a state of emergency, or in anticipation of such declara- tions.75 In the case of a national or regional emergency or disaster, or in anticipation of such a disaster, any FTA grantee or sub- grantee may petition the Administrator for temporary relief from the provisions of any policy statement, circular, guidance document, or rule.76 If the Administrator determines that an emergency event has occurred, or in anticipa- tion of such an event, FTA shall place a mes- sage on its Web page indicating that the Emer- gency Relief Docket (ERD) has been opened and include the docket number.77 The ERD shall be opened within 2 business days of an emergency or disaster declaration in which it appears FTA grantees or sub-grantees are or will be impacted.78 In cases in which emergen- 70 49 C.F.R. § 604.3(j). The charter rules were de- veloped pursuant to 49 U.S.C. § 5323(d) to protect private charter operators from undue competition from FTA recipients. 71 49 C.F.R. § 604.2(d). 72 49 U.S.C. § 5310 (2013). 73 49 U.S.C. § 5311 (2013). 74 49 C.F.R. § 604.2(e). 75 49 C.F.R. § 601.40. 76 49 C.F.R. § 601.41. 77 49 C.F.R. § 601.42(c). 78 49 C.F.R. § 601.43(a). cies can be anticipated, such as hurricanes, FTA shall open the ERD and place the message on the FTA Web page in advance of the event.79 All petitions for relief must be posted to the ERD in order to receive consideration by FTA.80 If a grantee or sub-grantee needs to request immediate relief and does not have access to electronic means to request that re- lief, the grantee or sub-grantee may contact any FTA regional office or FTA headquarters and request that FTA staff submit the petition on their behalf.81 A petition for relief must include:82 • The identity of the grantee or sub-grantee and its geographic location. • A specific explanation of how an FTA re- quirement in a policy statement, circular, or agency guidance will limit a grantee's or sub- grantee's ability to respond to an emergency or disaster. • Identification of the policy statement, cir- cular, guidance document, or rule from which the grantee or sub-grantee seeks relief. • Specification as to whether the petition for relief is one-time or ongoing, and if ongoing, identification of the time period for which the relief is requested (which may not exceed 3 months, though additional time may be re- quested through a second petition for relief). 8. FRA Passenger Train Emergency Preparedness Plans FRA requires minimum safety standards for the development and implementation of emer- gency preparedness plans83 for systems operat- ing on the national railroad network,84 and that employees are appropriately trained on such plans. These plans must be approved by FRA85 and must address, among other things, communications, notifications, employee train- ing, on-board staff, and coordination with emergency responders.86 In addition, each rail- road must conduct emergency simulation drills once a year.87 In 2012, FRA proposed a rule that would re- quire individual commuter and inter-city pas- 79 49 C.F.R. § 601.43(b). 80 49 C.F.R. § 601.44(a). 81 49 C.F.R. § 601.44(c). 82 49 C.F.R. §§ 601.45(a)-(d). 83 49 C.F.R. § 239.1. 84 49 C.F.R. § 239.3. 85 49 C.F.R. § 239.101. 86 Id. 87 49 C.F.R. § 239.103(b)(1)-(3).

17 senger rail operators to develop an SSPP.88 The rule would be established to satisfy the statu- tory mandate contained in Sections 103 and 109 of the Rail Safety Improvement Act of 200889 for passenger rail systems to develop risk reduction programs. Many components of the proposed rule are modeled after elements in APTA's Manual for the Development of Sys- tem Safety Program Plans for Commuter Rail- roads90 and thus would be similar to FTA’s general standards for SSPPs. 9. FRA Emergency Event Waivers The FRA Administrator may review peti- tions for waivers of a safety rule, regulation, or standard that FRA determines are directly related to the occurrence of, or imminent threat of, an emergency event or situation.91 FRA lists examples of such situations, includ- ing natural disasters such as hurricanes, floods, earthquakes, mudslides, forest fires, and snowstorms, or manmade intentional acts, which may include a dangerous radiological, chemical, explosive or biological material, or war-related activity that pose a risk of death, serious illness, severe injury, or substantial property damage.92 Each calendar year, FRA creates an ERD and by January 31 of each year, FRA publishes a notice in the Federal Register that an ERD has been opened and lists the ERD number for that year.93 If the Administrator determines that an emergency event or an emergency situation has occurred, or that an imminent threat of it occurring exists, and determines that public safety or recovery efforts require that the provisions of this section be imple- mented, the Administrator will activate the ERD.94 In determining whether an emergency exists, the Administrator may consider decla- rations of emergency made by local, state, or federal officials, and determinations by the federal government that a credible threat of a terrorist attack exists.95 Petitions submitted to FRA pursuant to this section should: 88 77 Fed. Reg. 55375 (Sept. 7, 2012). 89 Pub. L. No. 110-432, 122 Stat. 4848 (2008). 90 Manual available at http://www.apta.com/ resources/reportsandpublications/Documents/ commuter_rail_manual.pdf. Accessed July 1, 2013. 91 49 C.F.R. § 211.45(a). 92 Id. 93 49 C.F.R. § 211.45(b). 94 49 C.F.R. § 211.45(c). 95 Id. • Specifically address how the petition is re- lated to the emergency, and to the extent prac- tical, the rule or standard from which the peti- tioners wish relief;96 and • Describe 1) how the petitioner or public is affected by the emergency (including the im- pact on railroad operations), 2) what FRA regu- lations are implicated by the emergency, 3) how waiver of the implicated regulations would benefit the petitioner during the emergency, and 4) how long the petitioner expects to be affected by the emergency.97 10. Maritime Security and Emergency Plans Pursuant to the Maritime Transportation Security Act of 2002 (MTSA),98 vessels on navi- gable waters must designate a Company Secu- rity Officer (CSO)99 and a Vessel Security Offi- cer (VSO).100 Both such officers, as well as vessel personnel, must understand the security and emergency management plans and proce- dures of vessels operations101 and have received appropriate training in these areas.102 The CSO must ensure that vessels have a security as- sessment conducted that includes evaluations of emergency management procedures and equipment relative to potential threats and hazards,103 and that each vessel has a Vessel Security Plan (VSP) describing security meas- ures.104 A VSP must include the following ar- eas: • Security organization of the vessel. • Personnel training. • Drills and exercises. • Records and documentation. • Response to changes in Maritime Security (MARSEC) Levels (MARSEC Levels advise the maritime community and the public of the level of risk to maritime elements of the national transportation system105). • Procedures for interfacing with facilities and other vessels. • Declarations of Security. • Communications. 96 49 C.F.R. § 211.45(e). 97 Id. 98 Pub. L. No. 107-295, 116 Stat. 2064 (2002). 99 33 C.F.R. § 104.210. 100 33 C.F.R. § 104.215. 101 33 C.F.R. § 104.220. 102 33 C.F.R. § 104.225. 103 33 C.F.R. § 104.305. 104 33 C.F.R. § 104.400 with all elements at 33 C.F.R. § 104.405. 105 33 C.F.R. § 101.200.

18 • Security systems and equipment mainte- nance. • Security measures for access control, in- cluding designated passenger access areas and employee access areas. • Security measures for restricted areas. • Security measures for handling cargo. • Security measures for delivery of vessel stores and bunkers. • Security measures for monitoring. • Security incident procedures. • Audits and VSP amendments. • Vessel Security Assessment Report. Accordingly, maritime facilities must desig- nate a Facility Security Officer (FSO).106 The FSO as well as facility personnel must under- stand the security and emergency management plans and procedures of facility operations and have received appropriate training in these areas.107 The FSO must ensure that facilities have a security assessment conducted that includes evaluations of emergency manage- ment procedures and equipment relative to potential threats and hazards108 and that each facility has a Facility Security Plan (FSP) de- scribing the security measures for each.109 The FSP requirements are similar to those of the VSP above.110 Furthermore, drills and exercises for vessels and facilities must test the proficiency of vessel and facility personnel in assigned security du- ties at all MARSEC Levels and the effective implementation of plans to identify security deficiencies. 111 A drill or exercise must be con- ducted once every 3 months112 and test individ- ual elements of plans.113 Exercises must be either full-scale (live), tabletop or seminar, or combined with other appropriate means to test capabilities and training.114 Each exercise must test communication and notification proce- dures, and elements of coordination, resource availability, and response.115 While the above are USCG requirements, USCG additionally issued regulations pertain- 106 33 C.F.R. § 105.205. 107 33 C.F.R. §§ 105.210 and 105.215. 108 33 C.F.R. § 105.305. 109 33 C.F.R. § 105.400 with all elements at 33 C.F.R. § 105.405. 110 33 C.F.R. § 105.405. 111 33 C.F.R. §§ 104.230(a)(1) and 105.220(a)(1). 112 33 C.F.R. §§ 104.230(b)(1) and 105.220(b)(1). 113 33 C.F.R. §§ 104.230(b)(2) and 105.220(b)(2). 114 33 C.F.R. §§ 104.230(c)(2)(i)-(iii) and 105.220(c)(2)(i)-(iii). 115 33 C.F.R. §§ 104.230(c)(4) and 105.220(c)(4). ing to the development of a Safety Manage- ment System (SMS).116 The SMS is a frame- work similar to the FTA SSPP to guide an op- erator’s risk management approach. The development of an SMS is voluntary for pas- senger ferry vessels but is promoted by the Passenger Vessel Association and the USCG. Some large public ferry services like the New York City Department of Transportation’s Staten Island Ferry have developed and im- plemented an SMS.117 11. Americans with Disabilities Act and Executive Order 13347 The Americans with Disabilities Act (ADA)118 prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commer- cial facilities, and the use of transportation and transportation facilities. To be covered under the ADA, a person must have a disability or have a relationship or association with an indi- vidual with a disability. An individual with a disability is defined, in general, as a person who has a physical or mental impairment that substantially limits one or more major life ac- tivities. Title II of the ADA covers public transit au- thority operations. Transit systems may not discriminate against people with disabilities in the provision of their services. 119 Transit must comply with requirements for accessibility in newly purchased vehicles, make good faith efforts to purchase or lease accessible used ve- hicles, remanufacture vehicles in an accessible manner,120 and, unless it would result in an undue burden,121 provide paratransit where they operate fixed-route bus or rail systems.122 116 33 C.F.R. pt. 96. 117 In March 2005, as a result of its investigation into the Staten Island (S.I.) Ferry Andrew J. Barberi accident, the National Transportation Safety Board (NTSB) recommended that the USCG seek legislative authority to require all U.S.-flagged ferries to imple- ment safety management systems, and that the S.I. Ferry keep to its timetable to implement an SMS. National Transportation Safety Board, Marine Acci- dent Report: Allision of the Staten Island Ferry An- drew J. Barberi, St. George, Staten Island, New York, October 15, 2003, NTSB/MAR-05/01 (2005), at 73, available at http://www.ntsb.gov/doclib/reports/ 2005/MAR0501.pdf. Accessed July 1, 2013. 118 Pub. L. No. 110-325, 122 Stat. 3553 (2008). 119 42 U.S.C. §§ 12161 et seq. (2013). 120 42 U.S.C. §§ 12142 and 12162 (2013). 121 42 U.S.C. § 12145 (2013). 122 42 U.S.C. § 12143 (2013).

19 Recognizing that the ADA did not specifi- cally refer to the development of emergency plans, President Bush issued Executive Order 13347, Individuals with Disabilities in Emer- gency Preparedness,123 on July 22, 2004. This Executive Order directed the federal govern- ment to work together with state, local, and tribal governments, as well as private organi- zations, to appropriately address the safety and security needs of people with disabilities in emergency situations. 12. Transportation for Individuals with Disabilities: Passenger Vessels USDOT issued this ADA-related rule124 to ensure nondiscrimination on the basis of dis- ability by passenger vessel operators and ac- cessibility to landside facilities.125 This rule incorporates Executive Order 13347 and in- cludes requirements to assist passengers with disabilities disembark a vessel upon request,126 provide assistance to enable persons with dis- abilities to participate in safety or emergency evacuation drills,127 and to maintain evacua- tion programs, information, and equipment in accessible locations for all passengers.128 More- over, information must be conveyed to passen- gers with vision or hearing impairments.129 13. USDOT Environmental Justice Order 5610.2(a) This USDOT Order130 updated its prior 1997 Order to Address Environmental Justice in Minority Populations and Low-Income Popula- tions.131 USDOT’s administrations and fund recipients are encouraged to consider the envi- ronmental impacts of service and design plan- ning decisions on low-income and minority populations.132 The USDOT Order strives to 123 69 Fed. Reg. 44573 (July 26, 2004). 124 49 C.F.R. pt. 39. 125 The Supreme Court upheld that the ADA ap- plies to passenger vessels in Spector et al. v. Norwe- gian Cruise Lines, 545 U.S. 119, 125 S. Ct. 2169, 162 L. Ed. 2d 97 (2005). 126 49 C.F.R. § 39.83. 127 49 C.F.R. § 39.89. 128 Id. 129 49 C.F.R. § 39.85. 130 77 Fed. Reg. 27534 (May 10, 2012). Order also available at http://www.fhwa.dot.gov/environment/ environmental_justice/ej_at_dot/order_56102a/. Accessed July 1, 2013. 131 62 Fed. Reg. 18377 (Apr. 15, 1997). 132 See DOT/FTA Environmental Justice Circular [Docket FTA-2011-0055], 77 Fed. Reg. 42077, 42081 (July 17, 2012). ensure nondiscrimination under Title VI of the 1964 Civil Rights Act133 in federally funded activities. Under Title VI and related statutes, each federal agency is required to ensure that no person is excluded from participation in, denied the benefit of, or subjected to discrimi- nation under any program or activity receiving federal financial assistance on the basis of race, color, national origin, age, sex,134 and disabil- ity.135 The Civil Rights Restoration Act of 1987136 clarified the intent of Title VI to include all programs and activities of federal-aid re- cipients, subrecipients, and contractors,137 whether those programs and activities are fed- erally funded or not.138 The USDOT Order also builds upon the foundation of the National En- vironmental Policy Act of 1969 (NEPA),139 which stresses the importance of providing for "all Americans safe, healthful, productive, and esthetically pleasing surroundings,"140 and pro- vided a requirement for recipients to take a "systematic, interdisciplinary approach" to con- sider environmental and community factors in decision-making.141 The USDOT Order urges recipients to 1) avoid, minimize, or mitigate disproportionately high and adverse human health or environ- mental effects, including social and economic effects, on minority populations and low- income populations,142 and 2) ensure the full and fair participation by all potentially affected communities in the transportation decision- making process.143 In implementing these re- quirements, the following information should be obtained where relevant, appropriate, and practical:144 • Population served and/or affected by race, color, or national origin, and income level. • Proposed steps to guard against dispro- portionately high and adverse effects on per- sons on the basis of race, color, or national ori- 133 Pub. L. No. 88–352, 78 Stat. 241 (1964). 134 42 U.S.C. §§ 2000e-2(a)(1)-(2) (2013). 135 Disability included as part of the ADA de- scribed above. 136 Pub. L. No. 100-259; 102 Stat. 28 (1988). 137 42 U.S.C. §§ 2000d-4a(1)(A)-(B) (2013). 138 42 U.S.C. § 2000d-4a (2013). 139 Pub. L. No. 91-190, 83 Stat. 852 (1970). 140 42 U.S.C. § 4331(b)(2) (2013). 141 42 U.S.C. § 4332(A) (2013). 142 DOT Order 5610.2(a) § 5(a)(1), 77 Fed. Reg. 27534, 27535 (May 10, 2012). 143 Id. 144 DOT Order 5610.2(a) § 7(b), 77 Fed. Reg. 27534, 27536 (May 10, 2012).

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TRB’s Transit Cooperative Research Program (TCRP) Legal Research Digest 44: Legal Issues in Public Transit Emergency Planning and Operation synthesizes and assesses laws, regulations, and guidance from the transit and homeland security industries as a means to help transit agencies better understand their legal responsibilities with respect to emergency planning and operational issues. One of the goals of the report is to help transit systems remain in compliance with emergency planning and operations requirements and guidance.

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