[Federal Register: March 9, 2004 (Volume 69, Number 46)]
[Proposed Rules]
[Page 11217-11232]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr04-21]
[[Page 11217]]
-----------------------------------------------------------------------
Part IV
Department of Transportation
-----------------------------------------------------------------------
Federal Transit Administration
-----------------------------------------------------------------------
49 CFR Part 659
Rail Fixed Guideway Systems; State Safety Oversight; Proposed Rule
[[Page 11218]]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 659
[Docket No. FTA-2004-17196]
RIN 2132-AA76
Rail Fixed Guideway Systems; State Safety Oversight
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: FTA proposes to revise its regulation for State oversight of
rail transit safety and security programs. FTA believes that these
changes will clarify and improve the performance of existing
requirements; respond to recommendations identified by oversight
agencies and rail transit agencies; and address new concerns for
security and emergency preparedness. Also, the new rule will include
guidance that FTA has issued in the past several years as part of its
audit program and technical assistance. Proposed changes are the result
of FTA's on-going evaluation of State and rail transit programs
performed since 1997 and outreach conducted over the last year.
DATES: Comments on this proposed rule must be submitted by June 7,
2004.
ADDRESSES: Written comments must refer to the docket number appearing
above and must be submitted to the United States Department of
Transportation (U.S. DOT), Central Docket Office, PL-401, 400 Seventh
Street SW., Washington, DC 20590. All comments received will be
available for inspection at the above address from 10 a.m. to 5 p.m.,
Monday through Friday, except Federal holidays. Those desiring the
agency to acknowledge receipt of their comments should include a self-
addressed stamped postcard with their comments. Commenters may also
submit their comments electronically. Instructions for electronic
submission may be found at the following web address: http://dms.dot.gov/submit/.
The public may also review docketed comments
electronically. The following web address provides instructions and
access to the DOT electronic docket: http://dms.dot.gov/search/. The
Dockets Management System (DMS) is available 24 hours each day, 365
days each year. Please follow the online instructions for more
information and help.
Electronic Access: Electronic access to this rule and a side-by-
side table of the current rule and the proposed rule, along with other
safety rules, may be obtained through the FTA Office of Safety and
Security home page at http://transit-safety.volpe.dot.gov. An
electronic copy of this document may be downloaded, using a modem and
suitable communications software, from the Government Printing Office's
(GPO) Electronic Bulletin Board Service at (202) 512-1661. Internet
users may download this document from the Federal Register's homepage
at http://www.nara.gov/fedreg and from the GPO database at http://www
.access.gpo.gov/nara.
FOR FURTHER INFORMATION CONTACT: Jerry Fisher or Roy Field, Office of
Safety and Security, Federal Transit Administration, (202) 366-2896
(telephone) or (202) 366-3765 (fax).
SUPPLEMENTARY INFORMATION:
Outline of Preamble
I. Background and Purpose
II. Summary of Existing Requirements
III. Need for Rule Revision
IV. Overview of the Proposed Rule
V. Section by Section Analysis
VI. Regulatory Process Matters
a. Executive Order 12866
b. Departmental Significance
c. Regulatory Flexibility Act
d. Unfunded Mandates Reform Act of 1995
e. Executive Order 13132 (Federalism Assessment)
f. Paperwork Reduction Act
I. Background and Purpose
In response to congressional concern regarding the potential for
catastrophic accidents and security incidents on rail fixed guideway
systems, the Intermodal Surface Transportation Efficiency Act of 1991
(ISTEA) added section 28 to the Federal Transit Act (codified at 49
U.S.C. 5330). This section mandated that FTA issue a rule creating a
State-managed oversight program for rail transit safety and security.
On June 25, 1992, FTA issued an Advance Notice of Proposed
Rulemaking (ANPRM) soliciting public comment on a range of issues to be
addressed in the Notice of Proposed Rulemaking (NPRM). 57 FR 28572. On
December 9, 1993, FTA published that NPRM at 58 FR 64855. The final
rule, 49 CFR part 659, ``Rail Fixed Guideway Systems; State Safety
Oversight,'' was issued on December 27, 1995, at 60 FR 67034; it is
also referred to as the state safety oversight rule or Part 659. The
safety requirements for Part 659 went into effect on January 1, 1997
and the security requirements went into effect one year later.
When FTA issued its final rule, only five (5) States maintained
provisions for safety oversight of rail fixed guideway systems. Today,
22 States and the District of Columbia have developed and implemented
state safety oversight programs affecting 36 rail transit agencies. It
is projected that over the next decade, an additional seven (7) States
and as many as 16 new start rail transit agencies may be affected by
Part 659.
Since Part 659 created a community of oversight agencies where
previously few existed, the initial goal of the rulemaking was to
ensure that States were provided with sufficient authority to establish
programs that met the legislation's minimum requirements. FTA
recognized that it would take some time to determine if Part 659
requirements met this goal.
Now, after more than six years of experience in implementing Part
659 and evaluating its performance, FTA believes that significant
changes have been identified and are warranted to improve the program.
The proposed rule, presented here, conveys FTA's recommendations to
clarify State authorities and rail transit agency responsibilities
under the statute.
II. Summary of Existing Requirements
Section 5330 of Title 49, U.S.C. applies ``only to States that have
rail fixed guideway mass transportation systems not subject to
regulation by the Federal Railroad Administration.'' In its
implementing regulations, FTA defined a rail fixed guideway system as,
any light, heavy or rapid rail system, monorail, inclined plane,
funicular, trolley, or automated guideway that is included in FTA's
calculation of fixed guideway route miles or receives funding under
FTA's formula program for urbanized areas and is not regulated by
the Federal Railroad Administration (FRA). 49 CFR 659.5.
Each State with a rail fixed guideway system operating within its
borders is required to designate an oversight agency with sufficient
legal authority and technical capacity to implement Part 659
requirements. The designated oversight agency is required to develop a
program standard that defines the relationship between the oversight
agency and the rail fixed guideway system. The program standard must,
at a minimum, comply with the American Public Transportation
Association's (APTA) Manual for the Development of Rail Transit System
Safety Program Plans (APTA Manual) and must include specific provisions
addressing the personal security of passengers and employees.
The oversight agency must review and approve, in writing, the rail
fixed guideway system's system safety program plan and system security
plan. After these initial approvals, the
[[Page 11219]]
oversight agency must review and approve, as necessary, updates to the
rail fixed guideway system's plans.
The oversight agency must require each rail fixed guideway system
to report the occurrence of accidents and unacceptable hazardous
conditions within a specified period of time and must investigate such
events in accordance with established procedures. The oversight agency
may conduct its own investigation, use a contractor to conduct an
investigation, or review and approve the investigation conducted by the
rail fixed guideway system or the National Transportation Safety Board
(NTSB), or use a combination of these methods.
The oversight agency must require the rail fixed guideway system to
implement corrective action plans, as appropriate, to minimize, control
within a specified period, correct, or eliminate hazardous conditions
identified during investigations. The oversight agency must monitor
implementation of these plans.
The oversight agency must conduct an on-site safety review of the
rail fixed guideway system's implementation of its system safety
program plan and system security plan at least every three years. Once
this review is complete, the oversight agency must issue a report
containing its findings and recommendations, an analysis of the rail
fixed guideway system's safety and security program, and a
determination of whether it should be updated.
The oversight agency must require the rail fixed guideway system to
conduct an internal safety audit process that complies with Checklist
Number 9 of the APTA Manual. In addition, the rail fixed guideway
system must submit an annual report to the oversight agency documenting
the results of internal safety audit process.
Lastly, the oversight agency must submit three types of reports to
FTA: an Initial Submission; an Annual Submission, and a Periodic
Submission.
If a State has not met these requirements or has not made adequate
efforts to comply with them, the Secretary of the U.S. Department of
Transportation may withhold up to five percent of a fiscal year's
apportionment under FTA's formula program for urbanized areas (formerly
section 9) attributable to the State or an affected urbanized area in
the State.
A side-by-side table of the current rule and the proposed rule is
available on the FTA Office of Safety and Security home page at http://transit-safety.volpe.dot.gov
.
III. Need for Rule Revision
Since the rule's requirements went into effect, FTA has monitored
oversight agency compliance. During this time, FTA has worked with
representatives from oversight agencies, rail transit agencies, FRA,
NTSB, and APTA to identify areas in which the program, or the rule
itself, can be strengthened to ensure effective safety and security
oversight at our nation's rail transit properties, affected by Part
659.
In this activity, FTA utilized five distinct methods from which to
evaluate State compliance with Part 659 requirements and to identify
areas in which the rule could be improved. Each of these methods, and
its specific findings for the rule revision, is described below:
(1) FTA's audit program for Part 659;
(2) FTA's State Safety Oversight Program Annual Meetings;
(3) Quarterly State Safety Oversight Program Teleconferences;
(4) Working Groups for oversight agencies and rail transit agencies
to discuss the performance of the program and make recommendations to
FTA for improvements; and
(5) Coordination with the NTSB.
Audit Program. In 1998, FTA initiated its audit program for state
safety oversight agencies. Since that time, FTA has conducted 17 audits
that have assisted FTA in determining State compliance with the rule as
well as providing meaningful recommendations for strengthening the
state safety oversight program. Audit findings indicate that: (1)
Oversight agencies have difficulty determining their role and authority
in the management of hazards at the rail transit agencies within their
jurisdiction; (2) the APTA Manual does not currently provide a clear
listing of specific authorities required to manage oversight program
provisions; (3) States have difficulty requiring and enforcing the
performance of internal safety audits at rail transit agencies; and (4)
States and rail transit agencies have difficulty ensuring that program
plans remain up-to-date.
Annual Meetings. FTA initiated its annual meetings in 1997 to
discuss elements of the rule in detail; provide training for oversight
personnel in key areas, such as hazard identification and resolution
and the conduct of three-year safety reviews; promote coordination with
other federal programs; support working sessions to identify key
concerns in rule implementation; and present and discuss findings from
its audit program. During the last three annual meetings, States have
provided FTA with a listing of their recommendations regarding FTA
activity in the upcoming year. Typical State needs include training,
funding, and increased coordination with FRA, NTSB, and FTA's Project
Management Oversight Program.
Quarterly Teleconferences. In 2001, FTA began a quarterly
teleconference series with oversight agencies to update oversight
agencies on FTA activities, to discuss emerging safety and security
issues, and plan for the year's annual meeting.
Working Groups. In 2002, FTA initiated a series of monthly
teleconference working sessions with representatives from oversight
agencies and rail transit agencies. These teleconferences provide a
forum for key stakeholders to present their program recommendations to
FTA. The oversight agencies selected seven members to represent the
State perspective. APTA worked with the rail transit community to
identify five members for its group. Findings from the teleconference
calls include: (1) Both oversight agency and rail transit agency
representatives requested that FTA address the need for a process-based
requirement for the hazard management process; (2) both oversight
agency and rail transit agency representatives requested greater
consistency with other federal agencies and programs in accident
notification and investigation thresholds; (3) oversight agency
representatives requested that FTA remove the APTA Manual incorporation
by reference and provide a listing of specific authorities required for
the management of state safety oversight programs; and (4) some
oversight agency representatives suggested greater oversight for safety
prior to passenger operations.
National Transportation Safety Board. In September 2002, the NTSB
issued recommendations to FTA's Administrator (R-02-18 and -19),
stating that the APTA Manual, published on August 20, 1991, does ``not
contain the necessary specific guidance for assessing the effectiveness
of rules compliance programs; as a result, the guidelines are not
effective tools for regulatory authorities or transit agencies.'' The
NTSB recommended that rail transit agencies should adopt, in their
system safety program plans, specific standards covering rules
compliance and efficiency test programs. NTSB also made recommendations
to APTA to update the APTA Manual to address this concern, and to FTA
to adopt the updated APTA Manual.
Over the last six years, FTA has also developed technical
assistance material to address concerns identified by FTA,
[[Page 11220]]
the States, and the rail transit agencies. FTA has published technical
advisories, safety and security newsletters, and guidelines to address
implementation of rule requirements and successful practices. While the
guidance has benefited oversight agency and rail transit agency program
implementation, FTA recognizes that a number of the identified issues
must be resolved by regulation. It is based on the above findings that
FTA proposes revisions to the existing state safety oversight rule.
The purpose of this revision is to improve the performance of the
state safety oversight program and effect the following outcomes: (1)
Enhanced program efficiency and authority; (2) increased responsiveness
to recommendations and emerging safety and security issues; (3)
improved consistency in the collection and analysis of accident causal
factors through increased coordination with other Federal reporting and
investigation programs; and (4) improved performance of the hazard
management process. In addition, the proposed rule will clarify FTA's
position with regard to oversight management objectives and streamline
current reporting requirements including a move from paper reporting to
electronic reporting. Finally, the proposed rule would address
heightened concerns for rail transit security and emergency
preparedness.
IV. Overview of the Proposed Rule
At the time when Part 659 was published, FTA believed strongly that
in order to establish a nation-wide baseline standard for safety, it
was necessary to incorporate the APTA Manual by reference. FTA has
learned in the last six years, however, that while the APTA Manual
still provides a valuable tool for rail transit agencies in their
development of system safety program plans, it does not assist in State
compliance with rule requirements. To address this situation, the
proposed rule provides minimum requirements that should support the
development of an oversight program and guide its oversight activities.
These requirements are located in Sec. 659.13 of the proposed rule.
Removing reference to the APTA Manual also requires that FTA
identify minimum requirements to be addressed by the rail transit
agency in its system safety program plan. In preparing these
requirements, FTA used the APTA Manual and materials developed by
oversight agencies. These requirements are located in Sec. 659.15 of
the proposed rule.
In the proposed rule, the oversight agency would require the rail
transit agency to develop its system safety program plan and system
security plan as separate documents. All oversight agency reviews of
the system security plan would occur on-site at the rail transit
agency, or according to another procedure developed by the rail transit
agency in its system security plan. These requirements are located in
Sec. 659.17 of the proposed rule.
The proposed rule would require the oversight agency to oversee an
annual review by rail transit agency of its system safety program plan
and system security plan and modify or update as necessary. The
proposed regulation would require the oversight agency to review and
approve any modification or update. These changes are located Sec.
659.19 of the proposed rule.
The proposed rule would stipulate that the rail transit agency
conduct on-going internal safety and security reviews of its safety and
security programs and notify the oversight agency at least 30 days
prior to its conduct. The proposed regulation would require the State
to review and approve an annual report on rail transit agency internal
safety and security reviews and require the rail transit agency
executive director or general manager to submit a letter certifying
rail transit agency compliance with its own system safety program plan
and system security plan. These requirements are located in Sec.
659.21 of the proposed rule.
The proposed rule would clarify the State's role in the oversight
of hazard management activities performed by the rail transit agency.
The current rule specifies use of a hazard resolution matrix to
categorize hazards. Those hazards categorized as unacceptable are to be
investigated and culminate in the development to corrective action
plans to mitigate the unacceptable hazardous condition. The proposed
rule would clarify that hazards are managed using a hazard
identification and resolution process, similar to that prescribed in
the APTA Manual. The proposed rule would outline the process to be
developed by the rail transit agency that guides its hazard
identification and resolution activities, as well as coordination with
the oversight agency. These requirements are located in Sec. 659.25 of
the proposed rule.
The proposed rule also addresses inconsistencies in accident
notification and investigation thresholds between the state safety
oversight program and FTA's National Transit Database (NTD) reporting
thresholds, and the NTSB's notification and investigation thresholds.
The proposed rule would allow FTA to standardize accident causal
information obtained through the state safety oversight program by
ridership and accident data reported by rail transit agencies to the
NTD. The increased consistency would create a direct relationship
between reported accidents, identified causal factors, and corrective
actions and support consistent analysis of industry performance and
needs. Moreover, the proposed rule would support consistency between
those accidents requiring investigation under the state safety
oversight program and those investigated by the NTSB. These
requirements are located in Sec. 659.27, Sec. 659.29, and Sec.
659.31 of the proposed rule.
V. Section-by-Section Analysis
In this section, FTA discusses the differences between the existing
rule and the proposed rule. In addition to seeking comments on the
proposed rule overall, FTA also requests comments on the specific
issues indicated below.
Definitions (Sec. 659.5)
In the existing rule, FTA identifies thresholds for accident
notification and investigation in the rule's definitions. In the
proposed rule, FTA has opted to incorporate these thresholds directly
in their applicable sections (Sec. 659.27--Notification and Sec.
659.29--Investigations). FTA requests that comments made on these
thresholds be directed at the appropriate sections of the proposed
rule.
To clarify where events requiring notification and investigation
may occur, FTA has added definitions for ``rail transit vehicle'' and
``rail-transit controlled property.'' Likewise, to identify who may be
affected by these events, FTA has added a definition of ``individual.''
FTA has replaced the definition of hazardous condition with the
term ``hazard'' and proposes a definition that is more widely used in
the state safety oversight program and industry. FTA proposes to strike
the definition of ``unacceptable hazardous condition'' in the current
rule and replace this categorization threshold with a proposed hazard
management process, specified in section Sec. 659.25.
FTA has added a definition of ``corrective action plan'' and
``system security plan'' to clarify existing requirements, and has
revised its definition of ``system safety program standard'' and
``system safety program plan'' to reflect changes to the proposed rule
regarding the removal of the incorporation by reference of the APTA
Manual.
[[Page 11221]]
To address on-going questions resulting from the existing rule's
use of the term ``revenue operations,'' FTA proposes the addition of
the term ``passenger operations.'' This definition would clarify the
point in time when approved oversight agency and rail transit agency
programs must be in effect.
The proposed rule would modify the definition of rail fixed
guideway system by clarifying that the rule applies to systems that are
included in FTA's calculation of fixed guideway route miles to receive
funding under the formula program for urbanized areas (49 U.S.C. 5336).
FTA also added a caveat to address a system's intent to be included in
FTA's calculation of fixed guideway route miles to receive funding
under FTA's formula program for urbanized areas (49 U.S.C. 5336). With
this change, States with a rail transit project that is funded without
federal monies but expects to receive operating funds would be covered
by the program at the initiation of passenger operations. Finally, in
the revised rule, FTA proposes to use the term ``rail transit agency''
to refer to an entity that operates a rail fixed guideway system.
Designation of Oversight Agency (Sec. 659.9)
FTA's proposed rule contains several changes that would affect the
existing requirement for a State to designate an oversight agency for
each rail transit agency affected by Part 659 within its jurisdiction.
FTA is basing these proposed changes on lessons learned as the state
oversight community has grown. This proposed section would only apply
to States with rail fixed guideway systems in their jurisdiction that
have not designated an oversight agency by the date of the publication
of the final rule.
Part 659 currently stipulates that States designate an agency ``to
serve as the oversight agency and to implement the requirements of
[Part 659].'' During the rulemaking effort for the current rule, FTA
interpreted this requirement as meaning that the State was not required
to designate an oversight agency during the planning, design, and
construction of a new start rail system. As explained in the preamble
to the current rule, FTA believes that the language of section 5330
``covers only operating systems or systems about to commence
operations.''
Since 1998, FTA has worked with Utah, Wisconsin, and Puerto Rico to
ensure both the designation of oversight agencies for new start rail
projects and compliance with rule requirements at the time of passenger
operations. From this experience, FTA has learned the importance of
clarifying the designation time frame for States with new start systems
``about to commence operations.'' Without specific authority to require
and approve a designation submission that includes a schedule for
ensuring all program requirements are met by the time of operations, it
is difficult for FTA to ensure that sufficient time is provided to
address and resolve program concerns prior to passenger operations.
The proposed rule, therefore, would require that the State's
designation, at a minimum, coincides with the execution of any grant
between FTA and the rail transit agency for the new start project. FTA
anticipates that, in most cases, this requirement will correspond to
execution of a Full Funding Grant Agreement for a new start rail
project.
Designation means that the Governor for the affected State would
identify an agency, and a point of contact from that agency, that will
likely assume oversight responsibility for the rail transit agency.
Designation, for purposes of the proposed rule, may occur prior to the
passage of enabling legislation or other activities that may be
necessary for the oversight agency to assume its responsibilities for
implementing Part 659 requirements.
Upon designation, the State would have 60 days to provide FTA with
a designation submission. The designation submission would include (1)
identification of the agency most likely to provide oversight; (2) a
description of its current authorities relative to rail transit safety
and security oversight; (3) identification of any potential conflicts
of interest between the designated agency and the rail transit agency
based on financial or shared management responsibilities; (4) a point
of contact within the designated agency to coordinate with FTA
regarding the development of the program, and (5) a proposed schedule
detailing major milestones to ensure implementation of the State's
oversight program with revenue operations of the rail transit agency.
This proposal would formalize a practice that is already in place
and described in FTA's Compliance Guidelines for States with New Starts
Projects. Currently, FTA asks that the Governor of each State affected
by Part 659 to request designation of the oversight agency, as well as
a point of contact within the State-designated agency with whom FTA may
work to establish a line of communication as the agency develops its
oversight program. It is in working with the State point of contact
that FTA is able to provide technical assistance and outreach to
support the development of the State's oversight program. Timely
designation of the oversight agency also provides FTA with the
opportunity to formally invite State representatives to participate in
new start system meetings, held under FTA's Project Management
Oversight Program, to assess quarterly the progress of capital projects
subject to Part 659.
These changes to the rule's designation provisions also enhance
consistency with two other FTA programs. FRA and FTA published Shared
Use of the Tracks of the General Railroad System by Conventional
Railroads and Light Rail Transit Systems. 65 Fed. Reg. 42525 (July 10,
2000). This joint statement addresses safety issues related to light
rail transit operations that plan to take place on the tracks of the
general railroad system, and the role of the state safety oversight
program in supporting the rail transit agency's waiver process with
FRA.
Also, in a recent revision to FTA's Full Funding Grant Agreement
Guidance (FTA Circular 5100.1A, issued on December 5, 2002), FTA now
requires greater coordination between FTA's Project Management
Oversight Program and the state safety oversight program. New start
projects receiving a $25 million or greater share of federal funds must
include a Safety and Security Management Plan as part of the Project
Management Plan used to evaluate project progress and authorize the
release of funds. A component of this plan includes implementation
schedules for meeting State Safety Oversight requirements and waiver
applications to FRA for transit operations sharing corridors with the
general railroad system. These submissions must be coordinated with the
State and the designated oversight agency to ensure the continued
receipt of FTA funds.
To support early state safety oversight program development, FTA
makes funds available to support the designation of an oversight agency
and the development of the oversight program under FTA's interpretation
of Section 5309 of title 49, U.S.C. (FTA Guidance on Eligibility of
Start-up Costs, September 5, 1997). State oversight agencies are able
to receive funding from the rail transit agency, so long as the
oversight agency state safety oversight expenses are incurred during
the pre-revenue service phase of the capital project, are reasonable,
and directly support activation and pre-revenue operations of the new
service implemented under a capital grant.
[[Page 11222]]
The proposed rule would also address those new start projects that
are not funded by FTA grants, but intend to eventually receive funding
under FTA's formula program for urbanized areas (49 U.S.C. 5336). For
these projects, when an entity declares its intent to FTA to receive
formula funding (typically conveyed through the State transportation
planning process), an oversight agency must be designated. Again, 60
days is provided for the State to make its designation submission to
FTA.
For rail transit agencies that operate, or will operate, in more
than one State, the affected States may each designate an agency of the
State to implement state safety oversight requirements, or may agree to
designate one agency of one State, or an agency representative of both
States. Whatever designation determination is made by the affected
States, a single program standard, adopted by each State, would be
developed to implement state safety oversight program requirements. In
this manner, the rail transit agency would not be unduly burdened with
requirements from two or more States, but would be able to develop a
seamless program that is equally applicable in all affected States.
For commenters addressing this section, FTA specifically requests
information regarding (1) the amount of time required to prepare the
designation submission described in this section; and (2) any
additional requirements that may be appropriate to support coordination
with FTA's Project Management Oversight Program and FRA's Joint Policy
on Shared Use Track Systems.
System Safety Program Standard (Sec. 659.13)
The current rule requires oversight agencies to develop and adopt a
program standard that, at a minimum: (1) Complies with the APTA Manual,
and (2) requires the rail transit agency to address the personal
security of its passengers and employees.
The proposed rule would remove the reference to the APTA Manual
from the requirements for a state safety oversight system safety
program standard. FTA believes that this change is necessary for
several reasons.
First, to provide guidance for a dynamic and growing program, FTA,
working through the established public comment process, needs the
ability to change, modify, or revise the minimum requirements of the
program standard. Reliance on the 1991 version, or subsequent versions,
of the APTA Manual does not provide this capability because FTA does
not manage this document.
Second, the APTA Manual provides guidance for developing a rail
transit agency system safety program plan but does not provide
guidelines for how a State agency should oversee a rail transit agency
safety and security program or meet state safety oversight
requirements. While this situation was also the case when FTA issued
the current rule in December 1995, the state safety oversight community
had yet to be created (only five of the existing 22 oversight agencies
had been designated). At that time, based on public comment, it was
appropriate to reference a known industry standard rather than to
attempt to create a new one for State organizations that had not yet
been established.
Six years later, however, a more mature and experienced oversight
community has expressed concerns with using the APTA Manual as the
basis the program standard. In outreach sessions, oversight agencies
have requested that, instead of the APTA Manual, FTA provide a specific
list of minimum requirements for the program standard which can be
referenced in State enabling legislation, administrative code,
executive directives, and other means through which responsibility and
authority is conveyed to the oversight agency. To this end, in the
proposed rule, FTA has prepared a list of ten (10) elements that would
be included in a program standard, including minimum requirements that
would address oversight agency authority and specific interfaces with
the rail transit agency. The ten sections identified in the proposed
rule correspond closely to the organization and content already used by
many States in their standards--offering a tailored list of authorities
and activities required for oversight programs. FTA believes that this
modified approach will strengthen and clarify the enforceability of the
program and provide minimum requirements that focus on the management
of the State's oversight program.
It is important to note that in removing the program's
incorporation by reference of the APTA Manual, FTA is not intending to
lessen the importance of this document to the rail transit industry. To
the contrary, FTA believes the APTA Manual provides a valuable resource
for rail transit agencies and supports their compliance with the Part
659 requirement for system safety program plan development. Further,
FTA plans to collaborate with APTA to ensure that future implementation
guidelines are a product of a partnership between FTA, APTA, oversight
agencies, and rail transit agencies. FTA urges APTA to consider this
proposed rule in its subsequent revisions to the APTA Manual.
System Safety Program Plan (Sec. 659.15)
The current rule stipulates that the oversight agency must require
the rail transit agency to develop and implement a written system
safety program plan that complies with the oversight agency's program
standard. The proposed rule would maintain this requirement, though
instead of the APTA Manual, the proposed rule would identify 21
elements that must be included in the rail transit agency's system
safety program plan.
These 21 elements are derived from the industry's experience with
both the APTA Manual and the state safety oversight program. A rail
transit agency relying on the current APTA Manual to develop its system
safety program plan will have successfully addressed the 21 minimum
elements identified by FTA in the proposed rule, provided the rail
transit agency makes modifications to address specific changes proposed
in the revised rule. These changes follow.
(1) Develop a hazard management process in compliance with hazard
management process (Sec. 659.25) of the proposed rule--modifying the
rail transit agency's description of this process prepared in response
to APTA Manual's Checklist Number 7 to include coordination with the
oversight agency.
(2) Provide additional detail on the processes used by the rail
transit agency to address safety in system modifications and safety
certification for major projects--modifying the rail transit agency's
description of this process prepared in response to APTA Manual's
Checklist Number 15.
(3) Describe accident notification, investigation and corrective
action management processes in keeping with the proposed rule
requirements (Sec. 659.27 and Sec. 659.29)--modifying the rail
transit agency's description of this process prepared in response to
APTA Manual's Checklist Number 8 and the current rule.
(4) Describe the process by which the rail transit agency will
evaluate its emergency management program, such as an annual field
exercise. FTA strongly believes that in order to address heightened
concerns from recent events, an annual field exercise would support a
rail transit agency's evaluation of its level of preparedness for an
emergency event. In the last two years, FTA has provided funding to
support the conduct of emergency preparedness
[[Page 11223]]
drills at the majority of the rail transit agencies around the nation.
Lessons learned from this activity indicate its value in assuring
preparedness and promoting integration of local responders into rail
transit agency emergency preparedness programs. This represents a
modification to the rail transit agency's description of this process
prepared in response to APTA Manual's Checklist Number 14.
(5) Document an internal safety and security review process which
addresses greater coordination with the oversight agency regarding
notification of reviews, oversight agency review of checklists and
procedures, and submission of an annual report to the oversight
documenting findings and status of recommendations, as specified in
Sec. 659.21 of the proposed rule--modifying the rail transit agency's
description of this process prepared in response to APTA Manual's
Checklist Number 9;
(6) Provide additional detail on the employee safety program (to
include employee/contractor right-of-way safety)--modifying the rail
transit agency's description of these processes prepared in response to
APTA Manual's Checklist Numbers 19 and 22.
(7) Identify the specific requirements to address rail transit
agency procedures for rules compliance and performance testing to
assess employee knowledge of/compliance with operating rules--modifying
the rail transit agency's description prepared in response to APTA
Manual's Checklist Number 12.
FTA proposes this last change to address recommendations issued to
FTA's Administrator on September 26, 2002 by the NTSB (R-02-18 and -
19). In these recommendations, the NTSB concluded that the APTA Manual,
published on August 20, 1991, does ``not contain the necessary specific
guidance for assessing the effectiveness of rules compliance programs;
as a result, the guidelines are not effective tools for regulatory
authorities or transit agencies.'' The NTSB recommended that rail
transit agencies should adopt, in their system safety program plans,
specific standards covering rules compliance and efficiency test
programs. NTSB also made recommendations to APTA to update the APTA
Manual to address this concern, and to FTA to adopt the updated APTA
Manual. Since FTA's revised rule proposes not to reference the APTA
Manual in its program, FTA believes that it is important to address the
NTSB recommendation regarding performance testing in the minimum
requirements for the system safety program plan.
System Security Plan (Sec. 659.17)
To address the need to protect security information from public
disclosure, FTA believes that it is important to make certain that the
system safety program plan and the system security plan are separate
documents with different protocols for review and management. The
current rule allows the two plans to be combined into a single system
safety and security program plan, and relies on the submission of these
documents directly to the oversight agency via hard or electronic copy.
FTA is proposing a change to this practice which, first, would call
for a separate system security plan, and, second, ensure that this plan
and its supporting procedures would only be reviewed on-site at the
rail transit agency, or according to some other procedure specified by
the rail transit agency in its system security plan. FTA believes that
recent events resulting from the September 11, 2001, attacks and
potential changes in security policy that may be promulgated by the
Transportation Security Administration warrant these modifications.
FTA considered the requirement for the designation of ``transit
security sensitive information'' and the creation of procedures for the
management and storage of this type of information at the oversight
agency. However, FTA decided that the inconvenience of requiring on-
site review of a rail transit agency's system security plan and
supporting procedures was a less complex regulatory matter than
attempting to create new policies for classifying and managing specific
types of information at state agencies.
Therefore, FTA's proposed rule would identify minimum requirements
for the system security plan, and specify that the State must require
the rail transit agency to make available to the oversight agency, for
review and approval, its system security plan and accompanying
procedures. The oversight agency would then conduct its review of the
system security plan and supporting procedures on-site at the rail
transit agency, or following some other procedure specified by the rail
transit agency in its system security plan and approved by the
oversight agency. Throughout this process, the transit system and the
oversight agency must comply with all regulations related to the non-
disclosure of sensitive information, including the Transportation
Security Administration's regulations at 49 CFR Part 1520.
Rail Transit Agency Annual Review of Its System Safety Program Plan and
System Security Plan (Sec. 659.19)
FTA concluded from its audit program that the current rule does not
provide sufficient guidance with regard to a recommended schedule for
rail transit agency review and revision of its system safety program
plan and system security plan. FTA found that rail transit agency
reviews varied between one and three years and created situations where
a rail transit agency may be implementing procedures or practices that
are not reflected in its system safety program plan or system security
plan. To address this potential for out-of-date plans, the proposed
regulation would specify that the oversight agency must require the
rail transit agency to conduct an annual review of its system safety
program plan and system security plan. This review may simply result in
the determination that no update is necessary in either plan, or it may
address specific issues, such as the need for revised organization
charts or roles and responsibilities matrices, or it may result in more
substantive changes to one or both plans.
In the event that the system safety program plan is modified, the
rail transit agency would be required to submit the modified plan and
any subsequently modified procedures to the oversight agency for review
and approval. Upon approval of the plan, the oversight agency would be
required to issue a formal letter of approval to the rail transit
agency.
In the event the rail transit agency's system security plan is
modified, the rail transit agency would be required to make available
to the oversight agency for on-site review at the rail transit agency,
the modified plan and accompanying procedures. Upon approval of the
plan, the oversight agency would be required to issue a formal letter
of approval to the rail transit agency.
Rail Transit Agency Internal Safety and Security Reviews (Sec. 659.21)
Results from FTA's audit program and outreach with both oversight
agencies and rail transit agencies indicate that the internal safety
audit process requirement specified in the APTA Manual (Checklist
Number Nine), and referenced in the current rule, has been perhaps the
most challenging element of the program. Rail transit agencies have
struggled with obtaining sufficient resources and management support to
ensure that all elements identified in the APTA Manual are reviewed
consistently
[[Page 11224]]
over a three-year timeframe. State oversight agencies have expressed
the difficulty of obtaining schedules, checklists and procedures by
which the rail transit agency plans to conduct these reviews. State
oversight agencies have also indicated that the indirect authority
provided by the current rule, which requires only an annual report
documenting the rail transit agency's performance of the internal
safety audit process, makes it difficult for them to address this issue
more actively with the rail transit agencies.
FTA always intended that oversight agencies would play an important
role in ensuring that the internal safety audit process identified by
the rail transit agencies in their system safety program plans and
system security plans is carried out. However, FTA agrees that in
practice, the current rule does not sufficiently support oversight
agency authority to monitor implementation of this program in an on-
going manner.
To address these concerns, FTA proposes revising the existing rule
to provide specific requirements that must be carried out by the
oversight agency with regard to this process. To this end, FTA proposes
that oversight agencies would require the rail transit agencies within
their jurisdiction to develop a process for the performance of on-going
internal safety and security reviews. This process would be included in
the system safety program plan (for safety-related items) and the
system security plan (for security-related items), and be reviewed and
approved by the oversight agencies.
Further, the proposed rule would require that this process must:
(1) Describe the method used by the rail transit agency to determine if
all identified elements of its system safety program plan and system
security plan are performing as intended; and (2) ensure that all
elements of the system safety program plan and system security plan are
reviewed in an on-going manner and completed over a three-year cycle.
This process must also ensure that the rail transit agency would
notify the oversight agency at least thirty (30) days prior to the
conduct of scheduled internal safety and security reviews, and that the
rail transit agency would submit to the oversight agency, at the time
of notification, any checklists or procedures it will use during the
review. Any checklists or procedures the rail transit agency would use
for the security portion of its review must be made available to the
oversight agency for on-site review. At the request of the rail transit
agency, the oversight agency may participate in these reviews, though
the proposed rule would not require their participation.
In the proposed rule, the oversight agency must require the rail
transit agency to submit an annual report documenting internal safety
and security review activities and the status of subsequent findings
and recommendations. The security portion of this report would only be
made available for on-site review at the rail transit agency. The
annual report would be accompanied by a formal letter of certification
signed by the rail transit agency's executive director or general
manager indicating that the rail transit agency is in compliance with
its system safety program plan and system security plan. The oversight
agency would be required to formally review and approve this report.
FTA believes that this amended process will greatly improve the
coordination between the rail transit agencies and the oversight
agencies regarding this element of the program.
Oversight Agency Safety and Security Reviews (Sec. 659.23)
The current rule requires that, at least every three years, the
oversight agency must conduct an on-site review of the rail transit
agency's implementation of its system safety program plan and system
security plan. It also requires that the oversight agency prepare and
issue a report containing findings and recommendations resulting from
that review, which, at a minimum, must include an analysis of the
efficacy of the system safety program plan and a determination of
whether it should be updated. Based on the results of this on-site
review, the oversight agency would require the rail transit agency to
develop corrective action plans to address review findings.
Both oversight agencies and rail transit agencies have expressed
general satisfaction with these reviews. However, those States that
conduct these reviews in an on-going manner over the three-year period
(rather than as a single review) requested that FTA clarify their
authority to conduct the reviews in this manner. Therefore, this
section has been amended to specify that the rail transit agency's
system safety program plan may be reviewed in an on-going manner, over
the three-year timeframe, or in a comprehensive on-site review at the
rail transit agency, occurring once every three years.
Hazard Management Process (Sec. 659.25)
In the revised rule, FTA is proposing that the oversight agency
require the rail transit agency to develop a process to identify and
resolve hazardous conditions during operation, system extensions,
modifications, or changes. This process would replace the current
requirements for the notification and investigation of ``unacceptable
hazardous conditions,'' and ensure that the oversight agency has an on-
going role in the rail transit agency's hazard identification and
resolution process. FTA believes that such a role would enhance the
program's capability to monitor the identification and resolution of
hazards at the rail transit agency.
As proposed in the revised rule, the oversight agency must require
the rail transit agency to develop, as part of the system safety
program plan, a hazard management process to be reviewed and approved
by the oversight agency. This process must, at a minimum: (1) Define
the rail transit agency's approach to hazard management and the
implementation of an integrated system-wide hazard resolution process;
(2) specify the sources of, and the mechanisms to support, the on-going
identification of hazards; (3) define the process by which identified
hazards will be evaluated and prioritized for elimination or control;
(4) identify the mechanism used to track to resolution the identified
hazard(s); (5) define minimum thresholds for the notification and
reporting to oversight agencies of hazardous conditions; and (6)
specify the process by which the rail transit agency will provide on-
going reporting of hazard resolution activities to the oversight
agency.
The proposed regulation would not require industry-wide conformance
to a single hazard management methodology. Rail transit agencies may
propose methods that are specified in the APTA Manual or in military or
other system safety references, or they may wish to limit application
of matrix-based assessments in favor of trend analysis or other tools.
Whatever approach is ultimately selected by the rail transit agency, it
must be accurately identified and documented in the hazard management
process, submitted as part of the system safety program plan, and
reviewed and approved by the oversight agency.
Likewise, specific mechanisms for the on-going communication of the
results of the hazard management process with the oversight agencies
would be left open, to be determined by the specific rail transit
agency and oversight agency. Some rail transit agencies may wish to
invite their oversight agencies to monthly or quarterly meetings of
Hazard Resolution Committees and to document hazard management activity
in meeting minutes or notes from these
[[Page 11225]]
sessions. Other agencies may propose delivering a specific report on a
monthly, quarterly or semi-annual basis to the oversight agency. Still
other rail transit agencies may provide oversight agencies with access
to existing hazard management databases and reports, or may conduct
monthly teleconferences. FTA encourages the rail transit agencies and
the oversight agencies, whenever possible, to take advantage of
existing hazard management tools and processes to document and share
information.
This process would ensure a continuous dialogue regarding hazard
management between the oversight agency and the rail transit agency.
Further, the hazard management process would define the sources from
which rail transit agencies will identify and evaluate potential
hazards as well as the notification, investigation and corrective
action requirements implemented by the rail transit agency and reviewed
and approved by the oversight agency.
FTA believes that this approach will provide oversight agencies
with an improved understanding of this process, as applied in the rail
transit industry, and a greater context from which to assess rail
transit agency hazard evaluation processes and corrective action plans.
Notification (Sec. 659.27)
The current rule stipulates that the oversight agency must require
the rail transit agency to report accidents and unacceptable hazardous
conditions within a specified period of time determined by the
oversight agency. Upon notification of these events, oversight agencies
must investigate and require, review and approve corrective action
plans, as appropriate, to address investigation findings. In the
current rule, ``accidents'' include any events, if as a result: an
individual dies; an individual suffers bodily injury and immediately
receives medical treatment away from the scene of the accident; or a
collision, derailment, or fire causes property damage in excess of
$100,000.
``Unacceptable hazardous conditions'' include those hazardous
conditions determined to be unacceptable using the APTA Manual, Hazard
Resolution Matrix (Checklist Number 7). As explained in the section
above, the proposed rule replaces the requirements for ``unacceptable
hazardous conditions'' notification and investigation with a hazard
management process (Sec. 659.25).
For accident notification and investigation, results from FTA's
audit program and outreach with both oversight agencies and rail
transit agencies indicate that the current rule's thresholds for
accident notification are not consistent with other notification and
investigation thresholds. For example, the current rule's definition of
accident does not correspond with thresholds established by the NTSB,
FTA's Drug and Alcohol Program, the NTD, the FRA for shared track
systems, or State or local occupational safety and environmental
protection programs.
In working sessions with oversight agencies and rail transit
agencies, FTA identified a range of thresholds, currently used for
major incident reporting in the NTD, that FTA believes are significant
to the state safety oversight program. Using these thresholds, the
proposed rule would require oversight agency notification within two
(2) hours for any of the following events: (1) A fatality, where an
individual is confirmed dead within 30 days of a transit-related
incident, excluding suicides and deaths from illness; (2) injuries
requiring immediate medical attention away from the scene for two or
more individuals; (3) property damage to rail transit vehicles, non-
rail transit vehicles, other rail transit property or facilities that
equals or exceeds $25,000; (4) an evacuation due to life safety
reasons; or (5) a main-line derailment. These events could take place
on a rail transit vehicle or on rail transit-controlled property, and
could involve rail transit passengers, employees, contractors, rail
transit facility occupants, other workers, or trespassers.
By using consistent thresholds in the revised rule, oversight
agencies would be able to track rail transit agency reports to the NTD
using a module to be developed by FTA for this purpose. The ability to
access information within the NTD would enable oversight agencies to
consistently monitor rail transit agency performance of investigations,
identify causal factors, and assign corrective actions using an
existing federal resource. Consistent definitions allow FTA to remove
elements of oversight agency annual reporting requirements, namely
accident data and causal factors. FTA would get this information
directly from the NTD to support its analysis of causal factors and
drive safety and security initiatives and activities.
For rail transit agencies that share track with the general
railroad system and are subject to FRA notification requirements, FTA's
revised rule proposes that the oversight agency would also be notified
within two (2) hours of an incident for which the rail transit agency
must notify the FRA. FTA believes this is necessary to address the role
of the state safety oversight program in FRA's waiver process.
FTA's proposed rule would also require that the oversight agency
identify in its program standard the information to be given by the
rail transit agency during notification. The oversight agency would be
notified using any means, system, or format specified by the oversight
agency in its program standard.
Investigations (Sec. 659.29)
In the current rule, the oversight agency must (1) establish
procedures to investigate accidents and unacceptable hazardous
conditions and (2) unless the NTSB has investigated or will investigate
an accident, the oversight agency must investigate accidents and
unacceptable hazardous conditions occurring at a transit agency under
its jurisdiction. In the current rule, investigation ``may involve no
more than a review and approval of the transit agency's determination
of the probable cause of an accident or unacceptable hazardous
condition.''
FTA is now proposing that the oversight agency must, at a minimum
investigate, or cause to be investigated, accidents meeting one of
three thresholds for which it receives notification: (1) A fatality;
(2) injuries requiring immediate medical attention away from the scene
for two or more persons; (3) property damage equal to or exceeding
$25,000. This definition would correspond closely to the thresholds
required by the NTSB for rail transit agency notification of events
that may be subsequently investigated by the NTSB.
In meeting this requirement, the oversight agency would be required
to ensure that the investigation is conducted according to procedures
reviewed and approved by the oversight agency and submitted to FTA. In
the event the oversight agency designates the rail transit agency to
conduct the investigation on its behalf, it would do so formally and
would require the rail transit agency to use investigation procedures
that have been formally approved by the oversight agency and submitted
to FTA to fulfill the oversight agency's Initial or Annual Submission
requirements.
FTA's proposed rule specifies that each investigation must be
documented in a final report that includes a description of
investigation activities, identified causal factors, and a corrective
action plan. The revised rule would provide the oversight agency with
the flexibility to determine, in its program standard, when the final
investigation report must be submitted to the oversight agency; the
format of the final report; and whether status
[[Page 11226]]
updates or preliminary findings should also be submitted according to a
timeframe specified by the oversight agency. FTA encourages oversight
agencies and rail transit agencies to take advantage of existing
reports and templates, to eliminate the need for additional rail
transit agency reporting requirements. FTA's proposed rule also
specifies that the oversight agency must review and formally approve
each final investigation report.
Corrective Action Plans (Sec. 659.31)
Based on the results of FTA's audit program and working sessions
with oversight agencies and rail transit agencies, FTA's proposed rule
would consolidate all requirements for corrective action plans into a
single section. In this section, FTA proposes that the oversight agency
would, at a minimum, require the rail transit agency to develop a
corrective action plan for the following occurrences: (1) Results from
investigations in which identified causal factors are determined by the
rail transit agency or oversight agency as requiring corrective
actions; and (2) findings from safety and security reviews performed by
the oversight agency. Requirements for corrective action plan
development for identified hazardous conditions would be specified by
the rail transit agency in the hazard management process.
The proposed rule specifies that each corrective action plan must
identify the action to be taken by the rail transit agency and the
schedule for its implementation. The corrective action plan would be
reviewed and formally approved by the oversight agency. The oversight
agency would be required to monitor the implementation of each approved
corrective action plan.
FTA is aware of current program challenges, described by both
oversight agencies and rail transit agencies, regarding the means
available to assess whether the corrective action has been implemented
and whether it is successfully meeting its intended objective. To
address these concerns, FTA's proposed rule specifies that the
oversight agency must require the rail transit agency to provide (1)
verification that the corrective action(s) has been implemented as
detailed in the corrective action plan or a proposed alternate
action(s) subject to oversight agency review and approval; and (2)
periodic reports as requested by the oversight agency detailing the
status of each corrective action(s) not completely implemented as
detailed in the corrective action plan.
FTA believes that this approach would provide the rail transit
agency with sufficient flexibility to address the implementation of
corrective action plans, while, at the same time, ensure the
implementation of a process which can be effectively monitored by the
oversight agency.
Oversight Agency Report to the Federal Transit Administration (Sec.
659.33)
Based on its experience with monitoring and evaluating
implementation of the state safety oversight program, FTA is proposing
minor modifications to the current oversight agency submissions to FTA,
namely its initial submissions, annual submissions, and periodic
submissions. The proposed regulation would require that all submissions
to FTA are made electronically using an electronic reporting system. At
the current time, FTA anticipates that this reporting would occur in an
internet-based format, as a secure page on FTA's existing safety and
security website. State oversight agencies will be assigned a secure
login where they may upload their annual reports and electronic copies
of supporting documents and procedures. FTA believes that automating
this process would simplify the reporting function and data warehousing
requirements associated with the rule.
For initial submissions, the proposed rule would specify that the
each designated oversight agency must submit to FTA: (1) Oversight
agency program standard and supporting procedures; and (2) a
certification that the system safety program plan and the system
security plan have been developed, reviewed, and approved. In States
with rail fixed guideway systems in passenger operations as of the
publication date of this rule, the designated oversight agency must
make its initial submissions to FTA no later one year after the
publication of the final rule. In States with rail fixed guideway
systems entering passenger operations after the publication date of
this rule, the designated oversight agency must make its initial
submission within a time frame proposed by the State in its designation
submission and approved by FTA.
For commenters addressing this section, FTA requests their opinions
regarding the specified time frames for the initiation submissions. Is
one year from the publication date of the final rule sufficient?
FTA's revised rule proposes that annual submissions from oversight
agencies be made prior to March 15 of each year, and comply with the
annual report template developed by FTA and submitted to the oversight
agencies prior to March 15 of each year. The annual submission would
require the following: (1) A publicly available annual report
summarizing its oversight activities for the preceding twelve months;
(2) a report documenting findings from three-year safety review
activities, if a three-year safety review has been completed since the
last annual report was submitted; and (3) program standard and
supporting procedures that have been changed during the preceding year.
Finally, in its revised rule, FTA would have the authority to
request periodic submissions from oversight agencies, which may include
status reports for accident investigations, hazards, and corrective
action plans.
Use of Contractors (Sec. 659.35)
FTA's revised rule would remove the list of activities for which
state safety oversight agencies may allow the use contractors to
address state safety oversight requirements. Instead, this revised
section would simply require the oversight agency to prohibit an
individual or entity from providing state safety oversight services
when there may exist a conflict of interest. FTA would leave this
determination to the oversight agency.
Certification of Compliance (Sec. 659.37)
As in the existing rule, FTA's revised rule would require that each
oversight agency certify annually to the FTA that it has complied with
the requirements of the state safety oversight program. FTA is
proposing that each certification would be made electronically to FTA
using an electronic reporting system specified by FTA. The oversight
agency would be required to maintain a signed copy of each annual
certification to FTA, subject to audit by FTA.
VI. Regulatory Process Matters
a. Executive Order 12866
FTA has determined that this proposed action is a significant
regulatory action within the meaning of Executive Order 12866. While it
is anticipated that the economic impact of this rulemaking will be
minimal because the changes here are incremental in nature and any
incremental costs are negligible, FTA recognizes that the proposed rule
affects State governments and may be of congressional interest. After
consultation between DOT and the Office of Management and Budget (OMB)
concerning this NPRM, it has been determined that further OMB review of
the NPRM is not needed.
In 1995, FTA evaluated the industry-wide costs and benefits of the
current
[[Page 11227]]
rule. The economic analysis is available from FTA. In its analysis, FTA
estimated the total costs for the first ten years to be approximately
$9.1 million. However, when factoring in projections for program growth
and new starts, the estimated annual burden between years five (5) and
ten (10) increased approximately 15 percent. The present annual cost of
49 CFR Part 659 is $1,337,688. FTA estimates the annual cost of the
proposed rule (i.e., the annual cost of the entire rule as amended, as
distinct from incremental costs of the proposed changes) to be
approximately $2.1 million. The $800,000 difference between the current
cost of implementing the rule and the annual cost of implementing the
rule over the next 10 years is caused by mostly continued program
growth (i.e., addition of seven (7) rail transit agencies and new
states by the year 2013). Further, in its estimate for this proposed
rule, FTA increased the assumed hourly rate for personnel responsible
for implementing rule requirements from $25 per hour to $35 per hour.
This increase reflects FTA experience with the implementation of the
current rule's requirements and outreach with state and rail transit
agency representatives. FTA believes that while the estimate for annual
cost burden has increased, the proposed changes will not cause the
regulated parties to drastically change their behavior or substantially
increase the number of resources needed to meet the proposed
requirements.
b. Departmental Significance
This proposed rule is a significant regulation under the
Department's Regulatory Policies and Procedures, because it makes
changes to an important Departmental policy. Changes include the
replacement of a referenced industry manual as the guideline for
program compliance with proposed minimum requirements, a change in the
definition of accident notification and investigation thresholds,
clarification of critical processes such as the management of hazardous
conditions and the performance of threat and vulnerability assessments,
and many definitional additions.
c. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), FTA has evaluated the effects of this proposed
action on small entities and has determined that this proposed rule
will not have a significant impact on a substantial number of small
entities because these proposed changes will effect only larger transit
agencies and oversight agencies (such as State departments of
transportation and public utility commissions). Further, the original
analysis done for the 1995 final rule, currently being implemented, led
to the determination that there would be no significant impact on small
entities. This rule merely proposes modest administrative changes to
the original rule. For these reasons, FTA certifies that this action
will not have a significant economic impact on a substantial number of
small entities.
d. Unfunded Mandates Reform Act of 1995
This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22,
1995, 109 Stat. 48). This proposed rule will not result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year (2
U.S.C. 1532). As noted above, the estimated $2.1 million annual cost of
implementing the rule is well below this threshold.
e. Executive Order 13132 (Federalism Assessment)
Prior to the publication of the original State Safety Oversight
rule, FTA conducted a Federalism Assessment according to requirements
of Executive Order 12612, which has since been revoked and replaced by
the above-referenced order. That analysis can be found at 60 Fed. Reg.
67041 (Dec. 27, 1995). Because the State Safety Oversight requirements
are already in place, and this proposed rule only provides more
detailed requirements for greater clarification and performance-based
evaluation to the existing rule, FTA has determined that Federalism
impacts are minimal.
FTA has also determined that this action does not preempt any State
law or State regulation or affect the States' ability to discharge
traditional State governmental functions. As was noted in the original
analysis, there may be instances in which a State or local agency faces
a conflict between compliance with this rule and State and local
requirements. Because compliance with this rule is a condition of
Federal financial assistance, State and local governments have the
option of not seeking the Federal funds if they choose not to comply
with this rule.
f. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of Budget
and Management (OMB) for each collection of information they conduct,
sponsor, or require through regulations. This proposed rule includes
information collection requirements subject to PRA. OMB approved FTA's
collection requirements in the original rule and reviewed and approved
an updated submission in September 1999. That approval can be found
under OMB 2132-0558.
Since this action contains a proposal to institute additional or
altered paperwork collection burdens, FTA is required to submit this
collection of information to OMB for review and approval. Accordingly,
FTA seeks public comments on this proposed information collection
requirement. Interested parties are invited to send comments regarding
any aspect of this information collection, including but not limited
to: (1) The necessity and utility of the information collection for the
proper performance of the functions of FTA; (2) the accuracy of the
estimated burden; (3) ways to enhance the quality, utility, and clarity
of the collected information; and (4) ways to minimize the collection
burden without reducing the quality of the collected information.
Comments submitted in response to this NPRM will be summarized and/or
included in the request for OMB approval of this information
collection.
The estimated burden for information collection requirements is an
annualized amount of 26,502 hours and $927,600 for oversight agencies
and 33,244 hours and $1,163,540 for rail transit agencies. These
numbers concern the burdens of the entire as amended, as distinct from
incremental burdens of the proposed changes.
List of Subjects in 49 CFR Part 659
Grant Programs--Transportation, Mass transportation, Reporting and
record keeping requirements, Safety, Security, and Transportation.
For the reasons described in the preamble, FTA proposes to amend
title 49, Code of Federal Regulations, Part 659, as set forth below:
PART 659--STATE SAFETY OVERSIGHT
1. The authority citation for 49 CFR part 659 continues to read as
follows:
Authority: 49 U.S.C. 5330.
2. Revise part 659 to read as follows:
PART 659--RAIL FIXED GUIDEWAY SYSTEMS; STATE SAFETY OVERSIGHT
Sec.
659.1 Purpose.
659.3 Scope.
659.5 Definitions.
[[Page 11228]]
659.7 Withholding of funds for noncompliance.
659.9 Designation of oversight agency.
659.11 Confidentiality of investigation reports.
659.13 System safety program standard.
659.15 System safety program plan.
659.17 System security plan.
659.19 Rail transit agency annual review of its system safety
program plan and system security plan.
659.21 Rail transit agency internal safety and security reviews.
659.23 Oversight agency safety and security reviews.
659.25 Hazard management process.
659.27 Notification.
659.29 Investigations.
659.31 Corrective action plans.
659.33 Oversight agency reporting to the Federal Transit
Administration.
659.35 Conflict of interest.
659.37 Certification of compliance.
Sec. 659.1 Purpose.
This part implements 49 U.S.C. 5330 by requiring a State to oversee
the safety and security of rail fixed guideway systems through a
designated oversight agency.
Sec. 659.3 Scope.
This part applies to a State that has within its boundaries a rail
fixed guideway system as defined in this part.
Sec. 659.5 Definitions.
Contractor means an entity that performs tasks required by this
part on behalf of the oversight or rail transit agency. The rail
transit agency may not be a contractor for the oversight agency.
Corrective action plan means a plan developed by the rail transit
agency that sets forth the actions the rail transit agency will take to
minimize, control, correct, or eliminate hazardous conditions and the
schedule for implementation for those actions.
FTA means the Federal Transit Administration, an agency within the
U.S. Department of Transportation.
Hazard means any real or potential condition (as defined in the
rail transit agency's hazard management process) that can cause injury,
illness, or death; damage to or loss of a system, equipment or
property; or damage to the environment.
Individual means a passenger; employee; contractor; rail transit
facility occupant; other transit facility worker; or trespasser.
Investigation means the process used to determine the causal
factors of an accident or hazard such that actions can be identified to
prevent recurrence.
Oversight agency means the entity, other than the rail transit
agency, designated by the State or several States to implement this
part.
Passenger means a person who is on board, boarding, or alighting
from a rail transit vehicle for the purpose of travel.
Passenger operations means the period of time commencing when any
aspect of rail transit agency operation is initiated with the intent to
carry passengers.
Program standard means a written document developed and adopted by
the oversight agency that describes the policies, objectives,
responsibilities, and procedures used to provide rail transit agency
safety and security oversight.
Rail fixed guideway system means, as determined by FTA, any light,
heavy, or rapid rail system, monorail, inclined plane, funicular,
trolley, or automated guideway that:
(1) Is not regulated by the Federal Railroad Administration; and
(2) Is included in FTA's calculation of fixed guideway route miles
to receive funding under FTA's formula program for urbanized areas (49
U.S.C. 5336); or
(3) Has submitted documentation to FTA indicating its intent to be
included in FTA's calculation of fixed guideway route miles to receive
funding under FTA's formula program for urbanized areas (49 U.S.C.
5336).
Rail transit agency means an entity that operates a rail fixed
guideway system.
Rail transit-controlled property means property that is utilized by
the rail transit agency and may be owned, leased, or maintained by the
rail transit agency.
Rail transit vehicle means the rail transit agency's rolling stock.
Safety means freedom from harm resulting from unintentional acts or
circumstances.
Security means freedom from harm resulting from intentional acts or
circumstances.
System safety program plan means a document developed and adopted
by the rail transit agency detailing its safety policies, objectives,
responsibilities, and procedures.
System security plan means a document developed and adopted by the
rail transit agency detailing its security policies, objectives,
responsibilities, and procedures.
Sec. 659.7 Withholding of funds for noncompliance.
The Administrator of the FTA may withhold up to five percent of the
amount required to be apportioned for use in any State or affected
urbanized area in such State under FTA's formula program for urbanized
areas if the State in the previous fiscal year has not met the
requirements of this part and the Administrator determines that the
State is not making adequate efforts to comply with this part.
Sec. 659.9 Designation of oversight agency.
(a) States with oversight agencies designated for rail fixed
guideway systems in passenger operations prior to the publication of
this rule are not required to re-designate to FTA.
(b) For a rail fixed guideway system that will operate in only one
State, the State must designate an agency of the State, other than the
rail transit agency, as the oversight agency to implement the
requirements in this part.
(c) For a rail fixed guideway system that will operate in more than
one State, each affected State must designate an agency of the State,
other than the rail transit agency, as the oversight agency to
implement the requirements in this part. To fulfill this requirement,
the affected States:
(1) May agree to designate one agency of one State, or an agency
representative of all States, to implement the requirements in this
part.
(2) In the event multiple States share oversight responsibility for
a rail fixed guideway system, the States must ensure that the rail
fixed guideway system is subject to a single program standard, adopted
by all affected States.
(d) The State designation of the oversight agency must:
(1) Coincide with the execution of any grant agreement between FTA
and the rail fixed guideway system within the State's jurisdiction; or
(2) Occur prior to the application for funding under FTA's formula
program for urbanized areas (49 U.S.C. 5336) by an entity determined by
FTA as meeting the definition of rail fixed guideway system.
(e) Within (60) days of designation of the oversight agency, the
State must submit the following to FTA:
(1) The name of the oversight agency designated to implement
requirements in this part;
(2) Documentation of the oversight agency's authority to provide
State oversight;
(3) Contact information for the representative identified by the
designated oversight agency as having responsibility for oversight
activities;
(4) A description of the organizational and financial relationship
between the designated oversight agency and the rail transit agency;
(5) A schedule for the designated agency's development of its State
safety oversight program including the projected date of its initial
submission, as required in Sec. 659.31(a); and
(f) The State's designation of its oversight agency and submission
of
[[Page 11229]]
required information is subject to review and approval by FTA.
Sec. 659.11 Confidentiality of investigation reports.
The State may prohibit an investigation report that may be prepared
by the oversight agency from being admitted into evidence or used in a
civil action for damages resulting from a matter mentioned in the
report.
Sec. 659.13 System safety program standard.
(a) The oversight agency must develop a written program standard
that meets the requirements as specified in this part and includes, at
a minimum, the following sections:
(1) Oversight agency program management--In this section, the
oversight agency must explain its authority, policies, and roles and
responsibilities for the provision of safety and security oversight of
the rail transit agencies within its jurisdiction. This section must
provide an overview of planned activities to ensure on-going
communication with each affected rail transit agency regarding safety
and security information, as well as policies for communication with
FTA, including initial, annual and periodic submissions.
(2) Oversight agency program standard development--In this section,
the oversight agency must describe its process for the development and
review and adoption of the program standard, the modification and/or
update of the program standard, and the process through which the
program standard and any subsequent revisions are distributed to each
affected rail transit agency.
(3) Requirements for rail transit agency system safety program
plan--In this section, the oversight agency must specify the minimum
requirements to be addressed in the system safety program plan
developed by each affected rail transit agency within its jurisdiction.
This section must also describe the process and timeframe through which
the oversight agency must receive, review, and approve the rail transit
agency system safety program plan.
(4) Requirements for rail transit agency system security plan--In
this section, the oversight agency must identify the minimum
requirements to be addressed in the system security plan developed by
each affected rail transit agency within its jurisdiction. This section
must also describe the process through which the oversight agency will
review and approve the rail transit agency system security program
plan.
(5) Rail transit agency internal safety and security reviews--In
this section, the oversight agency must describe its role in overseeing
the rail transit agency internal safety or security review process.
This includes a description of the process used by the oversight agency
to receive rail transit agency checklists and procedures and approve
the rail transit agency's annual report on findings.
(6) Oversight agency safety and security review--In this section,
the oversight agency must specify its process and criteria to be used
every three years for conducting a complete review of each affected
rail transit agency's implementation of its system safety program plan
and system security plan. This section must also include the process to
be used by the affected rail transit agency and the oversight agency to
manage findings and recommendations from this review.
(7) Hazard management process--In this section, the oversight
agency must specify information to be contained in the affected rail
transit agency's system safety program plan regarding the hazard
management process, including requirements for on-going communication
and coordination regarding the identification; categorization;
resolution; and reporting of hazardous conditions to the oversight
agency.
(8) Notification--In this section, the oversight agency must
identify the specific requirements for the notification of accidents by
the rail transit agency to the oversight agency. This section must
include required timeframes, means for notification, and the
information to be submitted upon notification.
(9) Investigations--In this section, the oversight agency must
identify the thresholds for events which require an oversight agency
investigation. The roles and responsibilities for conducting
investigations must include: coordination with the rail transit agency
investigation process; the role of the oversight agency in supporting
investigations conducted by the National Transportation Safety Board;
and review and approval of investigation reports, including formats and
sign-offs.
(10) Corrective actions--In this section, the oversight agency must
specify its criteria for the development of a corrective action plan by
the rail transit agency; its process for the review and approval of a
corrective action plan; and its policies for the verification and
tracking of corrective action plan implementation.
(b) The program standard and any referenced program procedures must
be submitted to FTA as part of the initial submission. Subsequent
revisions and updates must be submitted to FTA as part of the oversight
agency's annual submission.
Sec. 659.15 System safety program plan.
(a) The oversight agency must require the rail transit agency to
develop and implement a written system safety program plan that
complies with requirements in this part and the oversight agency's
program standard.
(b) The system safety program plan must include, at a minimum:
(1) A policy statement signed by top management which endorses the
safety program and provides a description of the authority that
establishes the system safety program plan.
(2) A clear definition of the goals and objectives for the safety
program and stated management responsibilities to ensure that they are
achieved.
(3) An overview of the management structure of the rail transit
agency, including:
(i) An organization chart;
(ii) A description of how the safety function is integrated into
the rest of the rail transit organization; and
(iii) Clear identification of the lines of authority used by the
rail transit agency to manage safety issues.
(4) The process used to control changes to the system safety
program plan, including:
(i) Specification of an annual assessment regarding whether the
system safety program plan should be updated; and
(ii) Required coordination with the oversight agency, including
timeframes for submission, revision and approval.
(5) A description of the specific activities required to implement
the system safety program, including:
(i) Tasks to be performed by the rail transit safety function,
specified by position and management accountability, in matrices and/or
narrative format; and
(ii) Safety-related tasks to be performed by other rail transit
departments, specified by position and management accountability, in
matrices and/or narrative format.
(6) A description of the process used by the rail transit agency to
implement its hazard management program, including activities for:
(i) Hazard identification;
(ii) Hazard investigation, evaluation and analysis;
(iii) Hazard control and elimination;
(iv) Hazard tracking; and
(v) Requirements for on-going reporting to the oversight agency
regarding hazard management activities and status.
[[Page 11230]]
(7) A description of the process used by the rail transit agency to
ensure that safety concerns are addressed in modifications to existing
systems, vehicles, and equipment which do not require formal safety
certification but which may have safety impacts.
(8) A description of the safety certification process required by
the rail transit agency to initiate passenger operations and for
subsequent major projects undertaken to extend, rehabilitate, or modify
the existing system or to replace vehicles and equipment.
(9) A description of the process used to collect, maintain,
analyze, and distribute safety data to ensure that the safety function
within the rail transit organization receives the information necessary
to support implementation of the system safety program.
(10) A description of the process used by the rail transit agency
to perform accident notification, investigation and reporting,
including:
(i) Notification thresholds for internal and external
organizations;
(ii) Accident investigation process and references to procedures;
(iii) The process used to develop, implement and track corrective
actions that address investigation findings;
(iv) Reporting to internal and external organizations; and
(v) Coordination with the oversight agency.
(11) A description of the process used by the rail transit agency
to develop an approved, coordinated schedule for all emergency
management program activities, which include:
(i) Meetings with external agencies;
(ii) Emergency planning responsibilities and requirements;
(iii) Process used to evaluate emergency preparedness, such as
annual emergency field exercises;
(iv) After action reports and implementation of findings;
(v) Revision and distribution of emergency response procedures;
(vi) Familiarization training for public safety organizations; and
(vii) Employee training.
(12) A description of the process used by the rail transit agency
to ensure that planned and scheduled internal safety reviews are
performed to evaluate compliance with the system safety program plan,
including:
(i) Identification of departments and functions subject to review;
(ii) Responsibility for scheduling reviews;
(iii) Process for conducting reviews, including the development of
checklists and procedures and the issuing of findings;
(iv) Review reporting requirements;
(v) Tracking the status of implemented recommendations; and
(vi) Coordination with the oversight agency.
(13) A description of the process used by the trail transit agency
to develop, maintain, and ensure compliance with rules and procedures,
identified as having a safety impact, including:
(i) Identification of operating and maintenance rules and
procedures subject to review;
(ii) Techniques used to assess the implementation of operating and
maintenance rules and procedures by employees, such as performance
testing;
(iii) Techniques used to assess the effectiveness of supervision
provided regarding the implementation of operating and maintenance
rules; and
(iv) Process for documenting results and incorporating them into
the hazard management program.
(14) A description of the process used for facilities and equipment
safety inspections, including:
(i) Identification of the facilities and equipment subject to
regular safety related-inspection and testing;
(ii) Techniques used to conduct inspections and testing;
(iii) Inspection schedules and procedures; and
(iv) Description of how results are entered into the hazard
management process.
(15) A description of the maintenance audits and inspections
program including identification of the affected facilities and
equipment, maintenance cycles, documentation required, and the process
for integrating identified problems into the hazard management process.
(16) A description of the training and certification program for
employees and contractors, including:
(i) Categories of safety-related work requiring training and
certification;
(ii) A description of the training and certification program for
employees and contractors in safety-related positions;
(iii) Process used to maintain and access employee and contractor
training records; and
(iv) Process utilized to assess compliance with training and
certification requirements.
(17) A description of the configuration management control process,
including:
(i) The authority to make configuration changes;
(ii) Process for making changes; and
(iii) Assurances necessary for all involved departments to be
formally notified.
(18) A description of the safety program for employees and
contractors that incorporates the applicable local, state, and federal
requirements, including:
(i) Safety requirements that employees and contractors must follow
when working on, or in close proximity to, rail transit agency
property; and
(ii) Processes for ensuring the employees and contractors know the
requirements and follow them.
(19) A description of the hazardous materials program including the
process used to ensure knowledge of and compliance with program
requirements.
(20) A description of the drug and alcohol program and the process
used to ensure knowledge of and compliance with program requirements.
(21) A description of the measures, controls, and assurances in
place to ensure that safety is involved in the rail transit agency's
procurement process.
(c) The oversight agency must review and approve the rail transit
agency system safety program plan.
(d) Upon approval of the system safety program plan, the oversight
agency must issue a formal letter of approval to the rail transit
agency.
Sec. 659.17 System security plan.
(a) The oversight agency must require the rail transit agency to
implement a system security plan that complies with requirements in
this part and the oversight agency's program standard. The system
security plan must be developed and maintained as a separate document
and may not be part of the rail transit agency's system safety program
plan.
(b) The system security plan must, at a minimum:
(1) Identify the policies, goals, and objectives for the security
program endorsed by top management;
(2) Document the rail transit agency's process for managing threats
and vulnerabilities during operations and for major projects,
extensions, new vehicles and equipment;
(3) Identify controls in place that address the personal security
of passengers and employees;
(4) Document the rail transit agency's process for conducting
internal security reviews to evaluate compliance and measure the
effectiveness of the system security plan; and
(5) Document the rail transit agency's process for making available
its system security plan and accompanying procedures to the oversight
agency for review and approval.
(c) The oversight agency may prohibit a rail transit agency from
publicly disclosing the system security plan.
(d) Upon approval of the system security plan, the oversight agency
must
[[Page 11231]]
issue a formal letter of approval to the rail transit agency.
Sec. 659.19 Rail transit agency annual review of its system safety
program plan and system security plan.
The oversight agency must require the rail transit agency to
conduct an annual review of its system safety program plan and system
security plan.
(a) In the event the rail transit agency's system safety program
plan is modified, the rail transit agency must submit the modified plan
and any subsequently modified procedures to the oversight agency for
review and approval. Upon approval of the plan the oversight agency
must issue a formal letter of approval to the rail transit agency.
(b) In the event the rail transit agency's system security plan is
modified, the rail transit agency must make the modified system
security plan and accompanying procedures available to the oversight
agency for review, subject to requirements specified in Sec.
659.17(b)(5). Upon approval of the plan the oversight agency must issue
a formal letter of approval to the rail transit agency.
Sec. 659.21 Rail transit agency internal safety and security reviews.
(a) The oversight agency must require the rail transit agency to
develop and document in its system safety program plan, a process for
the performance of on-going internal safety and security reviews.
(b) The internal safety and security review process must, at a
minimum:
(1) Describe the process used by the rail transit agency to
determine if all identified elements of its system safety program plan
and system security plan are performing as intended.
(2) Ensure that all elements of the system safety program plan and
system security plan are reviewed in an on-going manner and completed
over a 3-year cycle. The 3-year cycle commences [EFFECTIVE DATE OF
FINAL RULE].
(c) The rail transit agency must notify the oversight agency at
least (30) days prior to the conduct of scheduled internal safety and
security reviews.
(1) The rail transit agency must submit to the oversight agency any
checklists or procedures it will use during the safety portion of its
review.
(2) Any checklists or procedures the rail transit agency will use
for the security portion of its review must be made available to the
oversight agency subject to Sec. 659.17(b)(5).
(d) The oversight agency must require the rail transit agency to
submit, annually, a report documenting internal safety and security
review activities and the status of subsequent findings and
recommendations. The security portion of this report must be made
available for oversight agency review subject to Sec. 659.17(b)(5).
(e) The annual report must be accompanied by a formal letter of
certification signed by the rail transit agency's executive director or
general manager indicating that the rail transit agency is in
compliance with its system safety program plan and system security
plan.
(f) The oversight agency must formally review and approve the
annual report.
Sec. 659.23 Oversight agency safety and security reviews.
Every 3 years, or in an on-going manner, commencing with the
initiation of rail transit agency passenger operations, the oversight
agency must conduct an on-site review of the rail transit agency's
implementation of its system safety program plan and system security
plan.
Sec. 659.25 Hazard management process.
(a) The oversight agency must require the rail transit agency to
develop and document in its system safety program plan a process to
identify and resolve existing hazards conditions during its operation,
as well as any hazards arising due to subsequent system extensions or
modifications, operational changes, or other changes within the rail
transit environment.
(b) The hazard management process must, at a minimum:
(1) Define the rail transit agency's approach to hazard management
and the implementation of an integrated system-wide hazard resolution
process;
(2) Specify the sources of, and the mechanisms to support, the on-
going identification of hazards;
(3) Define the process by which identified hazards will be
evaluated and prioritized for elimination or control;
(4) Identify the mechanism used to track to resolution the
identified hazard(s);
(5) Define minimum thresholds for the notification and reporting to
state oversight agencies of hazardous conditions; and
(6) Specify the process by which the rail transit agency will
provide on-going reporting of hazard resolution activities to the
oversight agency.
Sec. 659.27 Notification.
(a) The oversight agency must require the rail transit agency to
notify the oversight agency within two (2) hours of any event involving
a rail transit vehicle or taking place on rail transit-controlled
property where one or more of the following occurs:
(1) A fatality, where an individual is confirmed dead within 30
days of a transit-related incident, excluding suicides and deaths from
illness;
(2) Injuries requiring immediate medical attention away from the
scene for two or more individuals;
(3) Property damage to rail transit vehicles, non-rail transit
vehicles, other rail transit property or facilities that equals or
exceeds $25,000;
(4) An evacuation due to life safety reasons; or
(5) A main-line derailment.
(b) The oversight agency must require rail transit agencies that
share track with the general railroad system and are subject to the
Federal Railroad Administration notification requirements to notify the
oversight agency within two (2) hours of an incident for which the rail
transit agency must notify the Federal Railroad Administration.
(c) The oversight agency must identify in its program standard the
method of notification and the information to be given by the rail
transit agency.
Sec. 659.29 Investigations.
(a) The oversight agency must investigate, or cause to be
investigated, at a minimum, any event involving a rail transit vehicle
or taking place on rail transit-controlled property meeting the
fatality, injury, or property damage thresholds identified in Sec.
659.27(a).
(b) The oversight agency must use approved investigation procedures
that have been submitted to FTA as required in the initial submission
or annual submission.
(c) In the event the oversight agency designates the rail transit
agency to conduct investigations on its behalf, it must do so formally
and require the rail transit agency to use investigation procedures
that have been formally approved by the oversight agency.
(d) Each investigation must be documented in a final report that
includes a description of investigation activities, identified causal
factors, and a corrective action plan.
(1) The final investigation report must be submitted to the
oversight agency in a format and timeframe specified by the oversight
agency.
(2) The oversight agency must review and formally approve each
final investigation report.
(3) The oversight agency shall have the authority to require
periodic status reports that document investigation activities and
findings in a time frame determined by the oversight agency.
[[Page 11232]]
Sec. 659.31 Corrective action plans.
(a) The oversight agency must, at a minimum, require the
development of a corrective action plan for the following:
(1) Results from investigations in which identified causal factors
are determined by the rail transit agency or oversight agency as
requiring corrective actions; and
(2) Findings from safety and security reviews performed by the
oversight agency.
(b) Each corrective action plan should identify the action to be
taken by the rail transit agency and the schedule for its
implementation.
(c) The corrective action plan must be reviewed and formally
approved by the oversight agency.
(d) The rail transit agency must provide the oversight agency:
(1) Verification that the corrective action(s) has been implemented
as detailed in the corrective action plan or that a proposed alternate
action(s) has been implemented subject to oversight agency review and
approval; and
(2) Periodic reports as requested by the oversight agency detailing
the status of each corrective action(s) not completely implemented as
detailed in the corrective action plan.
(e) The oversight agency must monitor and track the implementation
of each approved corrective action plan.
Sec. 659.33 Oversight agency reporting to the Federal Transit
Administration.
(a) Initial submission: in States with rail fixed guideway systems
in passenger operations as of the publication date of this rule, the
designated oversight agency must make its initial submission to FTA by
[EFFECTIVE DATE OF FINAL RULE]. In States with rail fixed guideway
systems initiating passenger operations after the publication date of
this rule, the designated oversight agency must make its initial
submission within the time frame specified by the State in its
designation submission.
(b) The initial submission must include the following:
(1) Oversight agency program standard and referenced procedures;
and
(2) Certification that the system safety program plan and the
system security plan have been developed, reviewed, and approved.
(c) Annual Submission: before March 15 of each year, the oversight
agency must submit the following to FTA:
(1) A publicly available annual report summarizing its oversight
activities for the preceding 12 months, including a description of the
causal factors of investigated accidents and status of corrective
actions, updates and modifications to rail transit agency program
documentation;
(2) A report documenting findings from 3-year safety review
activities, if a 3-year safety review has been completed since the last
annual report was submitted; and
(3) Program standard and supporting procedures that have been
changed during the preceding year.
(d) Periodic submission--FTA retains the authority to periodically
request program information.
(e) Electronic reporting--All submissions to FTA required in this
part must be made electronically using an electronic reporting system
specified by FTA.
Sec. 659.35 Conflict of interest.
The oversight agency must prohibit a party or entity from providing
services to both the oversight agency and rail transit agency when
there exists a conflict of interest.
Sec. 659.37 Certification of compliance.
(a) Annually, the oversight agency must certify to the FTA that it
has complied with the requirements of this part.
(b) Each certification shall be made electronically to FTA using an
electronic reporting system specified by FTA.
(c) The oversight agency must maintain a signed copy of each annual
certification to FTA, subject to audit by FTA.
Issued on: February 24, 2004.
Jennifer L. Dorn,
Administrator.
[FR Doc. 04-5148 Filed 3-8-04; 8:45 am]
BILLING CODE 4910-57-P