Fix It, Sign It or Close It: State of Good Repair in an Era of Budget Constraints (2021)

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4 TCRP LRD 57 / NCHRP LRD 84 B. Public Transportation Systems SAFETEA-LU, MAP-21, and the FAST Act included pro- visions that required public transit agencies to develop and improve existing safety programs. Transit systems must use objective performance measures to determine funding and spending priorities, incorporating Congress’ objective of using scientific principles and data analysis to determine the most appro priate allocation of funds. The National Transit Asset Man- agement (TAM) System was outlined13 in the legislation and the concept of “state of good repair” was defined by regulation.14 A capital asset is in a state of good repair if it meets the following objective standards- (a) The capital asset is able to perform its designed function; (b) The use of the asset in its current condition does not pose an iden- tified unacceptable safety risk; and (c) The life–cycle investment needs have been met or recovered, in- cluding all scheduled maintenance, rehabilitation, and replacements.15 The TAM is intended to assist the transit agency in devel- oping a systematic “process of operating, maintaining, and im- proving its assets effectively throughout the life cycle of those assets.”16 The TAM plan includes capital asset inventories and condition assessments, decision-support tools, and investment prioritization.17 The following items are required to be in the TAM: (1) An inventory of the number and type of capital assets. The inven- tory must include all capital assets that a provider owns, except equip- ment with an acquisition value under $50,000 that is not a service vehicle. An inventory also must include third-party owned or jointly procured exclusive-use maintenance facilities, passenger station facil- ities, administrative facilities, rolling stock, and guideway infrastruc- ture used by a provider in the provision of public transportation. The asset inventory must be organized at a level of detail commensurate with the level of detail in the provider’s program of capital projects; and (2) A condition assessment of those inventoried assets for which a provider has direct capital responsibility. A condition assessment must generate information in a level of detail sufficient to monitor and predict the performance of the assets and to inform the invest- ment prioritization; and (3) A description of analytical processes or decision-support tools that a provider uses to estimate capital investment needs over time and develop its investment prioritization; and (4) A provider’s project-based prioritization of investments, devel- oped in accordance with § 625.33 of this part; and (5) A provider’s TAM and SGR policy; and (6) A provider’s TAM plan implementation strategy; and 13 Transit Asset Management, 49 U.S.C. § 5326 (2020). 14 State of good repair principles, 49 C.F.R. § 625.17 (2021). 15 Standards for measuring the condition of capital assets, 49 C.F.R. § 625.41 (2021). 16 Transit asset management, 49 U.S.C. § 5326(a)(3) 2020; see also Transit Asset Management Plan requirements, 49 C.F.R. § 625.25 (2021). 17 Elements of the National Transit Management System, 49 C.F.R. § 625.15 (2021). of the tort liability the agency may experience if facilities are not closed or access restricted when a potentially hazardous con- dition is present. Subsection IV.C addresses civil rights issues relating to potential legal liability if facilities are closed or elimi- nated temporarily. It provides recommendations for mitigation of liability for closures through public outreach or providing ac- cess to alternative routes or services. Throughout the digest are other suggested processes that may reduce the potential for legal exposure. II. LEGISLATIVE AND REGULATORY CONTEXT Transportation agencies are governed by federal and state authorities and must conform to multiple statutory and regula- tory requirements that relate to funding, safety, accessibility, and availability of service. A. State Highway Transportation Agencies The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU),7 which was signed into law on August 10, 2005, established the Highway Safety Improvement Program (HSIP)8 as a core federal-aid pro- gram. SAFETEA-LU created resources and opportunities for public agencies to improve highway safety in a comprehensive and strategic manner. In 2012, Congress enacted the Moving Ahead for Progress in the 21st Century Act (MAP-21),9 which was intended to further improve safety in the public transporta- tion industry and provide a steady source of funds for that pur- pose. The Fixing America’s Surface Transportation (FAST) Act10 was authorized in 2015. The FAST Act provided further fund- ing opportunities for state and local government transportation projects. The FAST Act continued the HSIP with only minor changes, including the requirement for state agencies to develop Strategic Highway Safety Plans (SHSPs).11 SHSPs must be up- dated and evaluated regularly using methods that have been established by the Federal Highway Administration (FHWA). Both MAP-21 and the FAST Act included the requirements for performance management processes and the development of an Asset Management Plan (AMP).12 All the federal funding programs were intended to reduce fatalities and serious injuries on public roads. Included in the legislation was the requirement of identification and implemen- tation of infrastructure related highway safety improvements based on objective criteria and establishing performance targets and requirements. 7 Pub. L. No. 109-59, 119 Stat. 144 (2005). 8 Id. § 1401, codified at 23 U.S.C. § 148 (2021). 9 Pub. L. No. 112-141, 126 Stat. 405 (2012). 10 Pub. L. No. 114-94, 129 Stat. 1312 (2015). 11 Eligibility, 23 U.S.C. § 148(c) (2021). 12 See FHWA, Asset Management, https://www.fhwa.dot.gov/asset/ guidance.cfm.

TCRP LRD 57 / NCHRP LRD 84 5 The Federal Railroad Administration (FRA) has promul- gated similar regulations.22 The regulations require rail opera- tions to establish and implement a system safety program that “continually and systematically evaluates railroad safety hazards on its system and manages the resulting risks to reduce the number and rates of railroad accidents, incidents, injuries, and fatalities.”23 Rail operations must also participate in a risk reduc- tion program.24 C. Protection of Data Collected in Safety Studies Both state and local highway administrations and railroads enjoy statutory protection of the information they gather for safety studies.25 The protected information includes plans, re- ports, documents, surveys, schedules, lists, or data, and (in the case of railroads) specifically includes a passenger rail op- eration’s analysis of its safety risks under and a passenger rail operation’s statement of mitigation measures. The information gathered by the agency is not subject to discovery, allowed to be admitted into evidence, or to be considered for other purposes in a federal or state court proceeding for damages involving personal injury, wrongful death, or property damage. Transit opera tions do not have the same protections under federal law at this time, although a change to the law has been considered by Congress.26 This omission in protection is critical for the transit agency because federal law requires that all the federally funded transportation agencies keep track of and prioritize the need for repair and replacement of assets. This necessarily requires an examination and ranking of vehicles, facilities, and equip- ment, and the requirement to identify equipment and assets that need refurbishment or replacement. If a tort claim relates to the alleged malfunction or defect of equipment, and the agency itself has identified that equipment or property as in need of re- pair or refurbishment, that fact of the need for repair may be- come a critical part of a plaintiff ’s case against the transit agency. 22 System Safety Program and Risk Reduction Program, 85 Fed. Reg. 12,826, 12,844 (Mar. 4, 2020), codified at 49 C.F.R. § 270.101 (2020). 23 Id. 24 Risk Reduction Program, 85 Fed. Reg. 9262 (Feb. 18, 2020), cod- ified at 49 C.F.R. pt. 271 (2020). 25 Discovery and admission as evidence of certain reports and sur- veys, 23 U.S.C. § 409 (2021); [FRA] Discovery and admission as evi- dence of certain information, 49 C.F.R. § 270.105(a) (2020), states “[A] ny information compiled or collected after August 14, 2017, solely for the purpose of planning, implementing, or evaluating a system safety program under this part shall not be subject to discovery, admitted into evidence, or considered for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage.” 26 Congress requested that TRB provide a recommendation as to whether legislation should be enacted that would bestow 23 U.S.C. § 409 type protections on transit agency safety studies and records. See, National Academies of Sciences, Engineering, and Medicine. 2018. Admissibility and Public Availability of Transit Safety Planning Records. Washington, DC: The National Academies Press. (7) A description of key TAM activities that a provider intends to en- gage in over the TAM plan horizon period; and (8) A summary or list of the resources, including personnel, that a provider needs to develop and carry out the TAM plan; and (9) An outline of how a provider will monitor, update, and evaluate, as needed, its TAM plan and related business practices, to ensure the continuous improvement of its TAM practices.18 A TAM is agency specific and developed and approved by the staff and management of the agency. TAMs are objective evaluation tools which can be used to establish performance measures, analyze available inventory, assess the condition of vehicles and facilities, and prioritize investments of the agency. Generally, asset management plans are used by the agency to track and maintain its assets and to determine which inventory needs to be repaired or replaced. The transit agency must annu- ally certify that it has complied with the rules issued under 49 U.S.C.§ 5326. While compliance with the legal provisions is a requirement for transit agencies, once the agency has developed and established its TAM, that document becomes a policy or guideline. The finished document is publicly available and will likely be requested and used by counsel in litigation. The use of the TAM plan in a legal action is developed further in Section III.B.4 of this digest. In 2018, the Federal Transit Administration (FTA) published the Public Transportation Agency Safety Plan (PTASP) Final Rule,19 which required operators of public transportation sys- tems to develop safety plans by July 2020, although due to the COVID-19 pandemic, the date was extended.20 The rules require a detailed and rigorous analysis of agency assets so that capital investments can be prioritized to meet safety performance and state of good repair targets. Important components of the safety plan include the requirement to monitor operations of the agency, reduce risks, and make improvements that are neces- sary for the safety and well-being of the employees and users of the facilities. The safety plan must be updated and certified by the transit agency annually. This rule applies to operators of public transportation systems that receive federal financial as- sistance under the Urbanized Area Formula Grants Program.21 Transit agencies are expected to modify safety plans and adjust performance targets as they collect data and implement their Safety Management Systems (SMS). 18 Transit Asset Management Plan requirements, 49 C.F.R. § 625.25 (2021). 19 Public Transportation Safety Plan, 83 Fed. Reg. 34,418 (July 19, 1018), codified at 49 C.F.R. pt. 673 (2019). 20 FTA, Public Transportation Agency Safety Plans, https://www. transit.dot.gov/PTASP, (last visited March 18, 2021). “In light of the extraordinary operational challenges presented by the COVID-19 pub- lic health emergency, FTA issued a Notice of Enforcement Discretion effectively extending the PTASP compliance deadline from July 20, 2020 to December 31, 2020,” id. The deadline was later extended to July 20, 2021. 21 The Urbanized Area Formula Grants program, 49 U.S.C. 5307 (2021), makes federal resources available to urbanized areas and to gov- ernors for transit capital and operating assistance in urbanized areas and for transportation-related planning.