[Federal Register Volume 70, Number 82 (Friday, April 29, 2005)]
[Rules and Regulations]
[Pages 22562-22583]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-8567]
[[Page 22561]]
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Part IV
Department of Transportation
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Federal Transit Administration
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49 CFR Part 659
Rail Fixed Guideway Systems; State Safety Oversight; Final Rule
Federal Register / Vol. 70, No. 82 / Friday, April 29, 2005 / Rules
and Regulations
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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: Final rule.
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SUMMARY: The Federal Transit Administration is revising its rule on
state safety oversight of rail fixed guideway systems not regulated by
the Federal Railroad Administration (FRA). Since January 26, 1996, when
the rule took effect, the agency has gained experience and insight
concerning the benefits of and recommended practices for implementing
state safety oversight requirements. This final rule revises the State
Safety Oversight rule and adds clarifying sections, further
specification concerning what the state must require to monitor safety
and security of non-FRA rail systems, and incorporates into the body of
the regulation material previously incorporated by reference. The
revised part should be easier to understand and ensure greater
compliance of the State oversight agencies, and enhance the safety and
security of the rail systems governed by this part.
DATES: The effective date of this rule is May 31, 2005. The compliance
date of this rule is May 1, 2006.
FOR FURTHER INFORMATION CONTACT: For program issues, Jerry A. Fisher or
Roy Field, Office of Safety and Security, Federal Transit
Administration, (202) 366-2896 (telephone) or (202) 366-3394 (fax). For
legal issues, Richard Wong, Office of Chief Counsel, Federal Transit
Administration, (202) 366-4011.
SUPPLEMENTARY INFORMATION:
Availability of the Final Rule
You may download this rule and other safety rules from the FTA
Office of Safety and Security home page at http://transit-
safety.volpe.dot.gov. The rule may also be downloaded from the
Government Printing Office's Federal Register Main Page at http://
www.gpoaccess.gov/fr/index.html. Users may download an electronic copy
of this document using a modem and suitable communications software
from the GPO Electronic Bulletin Board Service at (202) 512-1661. To
access all comments received by the U.S. DOT Dockets, Room PL-401,
refer to the Dockets Management System (DMS) on the DOT home page at
http://dms.dot.gov. The DMS is available 24 hours each day, 365 days
each year. Follow the online instructions for more information.
Outline of Preamble
I. Background
II. Purpose
III. Rulemaking Overview/Summary of Rule Changes
IV. Overview of the Comments
V. Section by Section Discussion of Public Comments
General Comments
Definitions
Withholding of Funds for Noncompliance
Designation of Oversight Agency
Confidentiality of Investigation Reports and Security
Plans
Oversight Agency Program Standard
System Safety Program Plan
System Security Plan
Rail Transit Agency Review of its System Safety Program
Plan
Rail Transit Agency Internal Safety and Security Review
Oversight Agency Safety and Security Review
Hazard Management Process
Accident
Corrective Action Plans
Oversight Agency Reporting to the Federal Transit
Administration
Conflict of Interest
VI. Section-by-Section Final Rule Analysis
VII. Distribution and Derivation Tables
VIII. Regulatory Process Matters
Executive Order 12866
Departmental Significance
Regulatory Flexibility Act
Unfunded Mandates Reform Act of 1995
Executive Order 13132 (Federalism Assessment)
Paperwork Reduction Act
List of Subjects
I. Background
This document adopts as final a new part 659, Rail Fixed Guideway
Systems; State Safety Oversight. This preamble to the final rule
contains a brief regulatory and program background about FTA's state
safety oversight program. It also summarizes the final rule provisions,
and discusses in detail the comments received on the proposed rule. We
also include in the preamble a section by section description of the
regulation. This is important, because, as discussed in the proposed
rule, we have changed the organization of the rule to enhance
usability. As a further aid, we are publishing at the end of this
preamble, distribution and derivation tables, which track where old
sections are in the revised part 659 and, conversely, the old section
from which the new part 659 sections are derived.
The preamble to a proposed rule typically contains more detailed
information than the final rule, because it lays out in detail the
provisions to aid public comment. This is true for this proposed and
final rule as well, but we have included a level of information in
today's Federal Register document that will provide a cogent
explanation of the intent and provisions of the program.
Regulatory Background. In 1991, Congress required for the first
time that the Federal Transit Administration (FTA) establish a program
providing for the State-conducted oversight of the safety and security
of rail systems not regulated by the Federal Railroad Administration
(FRA). (See Intermodal Surface Transportation Efficiency Act of 1991,
Pub. L. 102-240, Sec. 3029, also codified at 49 U.S.C. 5330.) FTA
published its final rule adopting a new part 659, Rail Fixed Guideway
Systems; State Safety Oversight, on December 27, 1995 (60 FR 67034).
The final rule went into effect January 26, 1996.
For reasons described in the next section of this preamble, the
agency determined that improvements could be made to part 659.
Accordingly, on March 9, 2004, FTA published a Notice of Proposed
Rulemaking (NPRM) proposing changes to its state safety oversight rule
contained in 49 CFR part 659. Today's document contains the final rule,
making changes to the substance and format of the existing part 659.
These changes are detailed later in this preamble.
Program Background. When FTA issued its final rule in 1995, only
five (5) states maintained provisions for safety oversight of rail
transit agencies. Today, twenty-six (26) state oversight agencies have
developed and implemented state safety oversight programs affecting
forty-four (44) rail fixed guideway systems. It is projected that over
the next decade, an additional four (4) state oversight agencies and as
many as twelve (12) new starts rail transit systems 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 rule's statutory requirements. Now, after eight
years of experience in implementing part 659 and evaluating its
performance, FTA has identified changes that will improve the program.
Today's final rule addresses many of these changes.
Since the beginning of the state safety oversight program, FTA has
maintained outreach with a variety of groups, including the affected
states, rail transit agencies, our DOT sister agency, FRA, the National
Transportation Safety Board (NTSB), and the American Public
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Transportation Association (APTA). In addition, FTA has instituted a
regulatory compliance program to ensure compliance with the rule's
provisions. Since the program went into effect, FTA has received
several recommendations concerning possible program improvements, and
has taken these recommendations into consideration in the development
of the final rule.
For example, the final rule clarifies the role of the state
oversight agency and the role of the rail transit provider. We have
done this by reorganizing the regulation and including more complete
descriptions of the responsibilities of the state, the state oversight
agency, and what the state oversight agency must require of the rail
transit property. The final rule also includes a new definition of
hazard and contains a separate section on a hazard management plan.
In addition, in September 2002, the NTSB issued recommendations to
FTA (R-02-18 and -19). NTSB stated 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
adopt, in their system safety program plans, specific standards
covering rules compliance and efficiency testing programs for
operations and maintenance personnel. NTSB also recommended to APTA
that it update its Manual to address this concern and that FTA adopt
the updated APTA Manual.
APTA may choose to update its Manual. However, to provide a more
user-friendly regulation, the FTA determined that it is in the interest
of our users to publish all of the provisions of the APTA Manual in the
state safety oversight regulation. By eliminating a reference to the
APTA manual in the regulation, and listing all requirements in full,
this allows FTA to respond to changed circumstances and subsequent
recommendations from NTSB directly through the rulemaking process. This
listing also provides greater usability of the regulations, since all
of the requirements are printed in one place.
II. Purpose
This rule is published to improve the performance of the State
Safety Oversight Program and to ensure the following outcomes: (1)
Enhance program efficiency; (2) increase responsiveness to
recommendations from the NTSB and emerging safety and security issues;
(3) improve consistency in the collection and analysis of accident
causal factors through increased coordination with other Federal
reporting and investigation programs; and (4) improve performance of
the hazard management process. The rule also clarifies FTA's oversight
management objectives, and streamlines current reporting requirements,
including the change from paper reporting to electronic reporting.
Finally, the rule addresses heightened concerns for rail transit
security and emergency preparedness.
III. Rulemaking Overview/Summary of Rule Changes
FTA amended several sections of the State Safety Oversight rule.
These changes are summarized below, according to their effect on state,
oversight agency, rail transit agency, and FTA roles and
responsibilities.
The State
Under this rule, the primary responsibility of the state remains
designating an entity--other than the rail transit agency--to oversee
the safety and security of a rail fixed guideway system. If a rail
fixed guideway system operates in more than one state, each state may
designate an entity as the oversight agency or may agree to designate
one agency from one state to provide oversight. In either case, this
rule requires that in all circumstances in which a rail fixed guideway
system is operating in multiple states, the rail transit agency
operating the rail fixed guideway system must be subject to only one
program standard.
In addition, an affected state's designation of its oversight
agency must now either coincide with the execution of any New Starts
project grant agreement between FTA and the rail fixed guideway system
within the state's jurisdiction, or occur before the application for
funding under FTA's formula program for urbanized areas (49 U.S.C.
5307) by an entity meeting the definition of rail fixed guideway
system.
Within sixty (60) days of designating the oversight agency, the
state must make its designation submission to FTA. A state that has
already designated an oversight agency before the implementation of
this rule does not need to re-designate. Should a state change its
designated oversight agency, it must submit its proposed designation to
FTA for review and approval within thirty (30) days of its change.
After FTA approves the oversight agency designation, the designated
oversight agency must provide its initial submission within thirty (30)
days of receiving FTA's approval.
The state may prohibit public disclosure of investigation reports.
Furthermore, states are not required to make available the rail transit
agency's security plan or referenced procedures. If states cannot
protect rail transit agency security plans or supporting procedures
from public disclosure, then the state must review these documents on-
site at the rail transit agency.
The Oversight Agency
This rule identifies the minimum requirements for the oversight
agency's development of its program standard and the rail transit
agency's development of its system safety program plan and security
plan. In the previous regulation some of these standards were contained
in the APTA Manual, which was incorporated by reference into the
regulation.
Each oversight agency must require the rail transit agency to
develop and maintain a separate system safety program plan and system
security plan that complies with the oversight agency's program
standard and requirements specified in this part. The oversight agency
must still require the rail transit agency to conduct internal safety
and security audits.
The oversight agency must review and approve the rail transit
agency's annual report, documenting rail transit agency internal safety
and security audit findings. The rule also requires the oversight
agency to oversee an annual review by the rail transit agency of its
system safety program plan and system security plan to determine
whether or not either plan must be modified or updated. The oversight
agency must review and approve any modification or update.
The oversight agency must require the rail transit agency to
develop a hazard management process as part of its system safety
program plan, to be reviewed and approved by the oversight agency. The
oversight agency must require the rail transit agency to develop, in
coordination with the oversight agency, thresholds for the notification
and reporting of hazards to the oversight agency. Measures to eliminate
or control hazards and the associated corrective actions are to be
managed through the hazard management process, including rail transit
agency procedures for providing the oversight agency with reports to
track mitigation.
FTA has modified the thresholds for the notification and
investigation of accidents. The oversight agency must require rail
transit agencies to report the occurrence of accidents within two (2)
hours. In those instances where the rail
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transit agency shares track with the general railroad system and is
subject to FRA notification requirements, the rail transit agency must
notify the oversight agency within two (2) hours of an incident for
which FRA is notified.
The oversight agency must investigate--or cause to be
investigated--all accidents meeting the notification and investigation
thresholds. The oversight agency must review and approve all
procedures--except those used by the NTSB--that will be used to conduct
an investigation on its behalf. Should the oversight agency not accept
the rail transit agency's investigation report, it must either conduct
its own investigation or prepare its own report with the amended
findings. If the NTSB investigates an accident, the oversight agency
remains responsible for the development of the accident report and
corrective actions. It may adopt, in whole or in part, NTSB's report
and findings, just as it may adopt, in whole or in part, the rail
transit agency's investigation report and findings.
The oversight agency must require the rail transit agency to
develop corrective action plans to address findings from accidents and
the oversight agency's three-year safety and security review. In the
case of accident investigations, the oversight agency is responsible
for ensuring that a corrective action plan is developed, implemented,
and tracked, regardless of the entity that conducts the investigation
on the oversight agency's behalf. Should the NTSB conduct the accident
investigation, the oversight agency must identify a process for
evaluating NTSB findings to determine whether or not corrective actions
should be implemented. The oversight agency must also identify a
dispute resolution process for corrective action plan implementation,
should the rail transit agency disagree with the oversight agency.
The oversight agency must still submit three types of reports to
FTA: the initial submission, annual reports, and periodic reports. The
initial submission must be delivered to FTA not later than sixty (60)
days prior to the commencement of passenger operations for any New
Starts system. All designated oversight agencies must provide FTA with
an initial submission by the rule's date of effectiveness. An oversight
agency designated after the rule's date of effectiveness must make its
initial submission by the date specified in its designation submission,
but no later than sixty (60) days prior to the commencement of
passenger operations. In the event a state changes its oversight
agency, the initial submission is due within thirty (30) days of the
new designation. The initial submission must include the oversight
agency program standard, all referenced procedures, and certification
that the rail transit agency system safety program plan and the system
security plan have been developed, reviewed, and approved by the
oversight agency.
Annual reports must summarize oversight activities for the
preceding twelve (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; a report that documents findings from three-year safety
review activities, whether or not a three-year safety review has been
completed since the last annual report was submitted; a description of
the program standard and supporting procedures, if they have changed
during the preceding year; and certification that any changes or
modifications to the rail transit agency system safety program plan or
system security plan have been reviewed and approved by the oversight
agency.
FTA may request periodic reports from the oversight agency. All
three types of reports must be submitted electronically to FTA.
The oversight agency must ensure that there is no conflict of
interest by either the oversight agency or an entity operating on its
behalf in providing oversight activities required in this rule.
Rail Transit Agency
FTA added the definition of ``rail transit agency'' as the agency
responsible for operating the rail fixed guideway system. FTA modified
the definition of ``rail fixed guideway system'' to ensure that states,
their designated oversight agencies, and rail transit agencies have
completed applicable requirements prior to the start of passenger
operations.
The rail transit agency is still required to develop a system
safety program plan and security plan that complies with the oversight
agency's program standard and the minimum requirements specified in
this rule. However, the two documents must be developed and maintained
separately. The rail transit agency must review its system safety
program plan and security plan annually. If either the system safety
program plan or security plan must be modified, the rail transit agency
must submit the modified plan to the oversight agency for review and
approval.
The rail transit agency must ensure that all elements of its system
safety program and security plan are reviewed in an ongoing manner over
a three-year cycle, in accordance with internal audit requirements. The
rail transit agency must provide the oversight agency at least thirty
(30) days notice prior to the conduct of scheduled internal safety and
security reviews. The rail transit agency must also submit to the
oversight agency checklists and procedures to be used in conducting the
reviews. The rail transit agency's chief executive must submit a
statement of compliance or noncompliance with its system safety program
plan or security plan, along with the rail transit agency's annual
report, to the oversight agency. If the rail transit agency is in
noncompliance, the report must identify the areas that do not conform
to the rail transit agency's system safety program plan, and must list
measures being taken to bring these areas into compliance.
The rail transit agency must develop and implement a hazard
management process that includes, at a minimum, a definition of the
rail transit agency's approach to the hazard management and resolution
process, a list of the sources and mechanisms used to support the
ongoing identification of hazards, the process by which identified
hazards will be evaluated and prioritized for elimination or control,
the mechanism used to track identified hazards to resolution, the
minimum thresholds for notification and reporting hazards to the
oversight agency, and the process for ongoing reporting of hazard
resolution activities to the oversight agency.
The rail transit agency must notify the oversight agency within two
(2) hours of accidents in a format defined by the oversight agency. The
rail transit agency must provide verification that corrective actions
to address the finding(s) from an accident investigation are
implemented as described in a corrective action plan, or must propose
an alternative action(s) to be implemented subject to oversight agency
review and approval. The rail transit agency must provide periodic
reports as requested by the oversight agency detailing the status of
corrective action implementation.
Federal Transit Administration
The FTA will continue to evaluate whether states have complied with
the rule or have made adequate efforts to comply with it. This rule
directs FTA to approve state designation submittals, oversight agency
initial submissions, and oversight agency annual submissions. FTA
retains the authority to request periodic submissions from oversight
agencies.
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IV. Overview of the Comments
FTA received eighteen (18) comments in response to the NPRM. FTA
considered all comments filed. The breakdown among commenter categories
is as follows:
State DOTs.......................................................... 7
Transit Agencies.................................................... 6
Public Utilities.................................................... 2
Trade Associations.................................................. 2
States.............................................................. 1
Our evaluation of the comments did not lead to substantial changes
between the NPRM and this Final Rule. In Section V below, we discuss in
detail the public comments addressing issues raised in the NPRM.
V. Section by Section Discussion of the Comments
General Comments
Historically, states have raised concern over the lack of Federal
funding to assist them in the development and implementation of safety
and security oversight programs. In response to FTA's NPRM, several
commenters addressed the issue of what the states term an ``unfunded
mandate.''
Two commenters stated that the proposed rule would increase the
burden on the states to perform oversight without providing any
funding. These commenters noted that the proposed increase in workload
is beyond their current state funding levels. One of the commenters
suggested that safety oversight could be monitored and enforced through
FTA's Triennial Review Process instead of through the states. One
commenter noted that FTA makes funds available to support the
development of the oversight program. The commenter recommended that
``FTA provide funding for all capital projects includ[ing] monies to
the [oversight agency] for the significant additional costs of safety
and security certification.'' One commenter suggested that FTA identify
ways to minimize the information collection burden without reducing the
quality of the collected information.
Finally, one commenter suggested that the rule should take into
account typical state funding cycles in relation to the schedule for
implementing corrective actions.
FTA Response. For purposes of required analysis under Federal law
applicable to Federal agencies, as discussed in Part VI of this
preamble, this rule does not constitute an ``unfunded mandate.'' FTA
has attempted to identify Federal funding sources to support state
safety oversight. For states with New Starts projects, capital grant
monies may be used for the initial development of state oversight
agencies. However, neither operating nor capital grants can be used to
support existing oversight agencies once passenger service commences.
FTA provides technical assistance to state oversight agencies under
development or in existence in an effort to effectively promote safety
and security in the rail transit environment and to reduce the learning
curve of a state new to the program. The rule makes allowances for
state funding cycles and corrective action implementation dates. The
implementation cycle of corrective actions continues to be a local
issue, and schedules for the implementation of corrective actions
should be decided by the rail transit agency, with appropriate state
oversight, taking into consideration the funds available to implement
the corrective actions. FTA believes that the rule allows the rail
transit agency and oversight agency to identify an appropriate schedule
for corrective action implementation.
Definitions
One commenter recommended changing the definition of ``hazard'' to
``hazard means any real or potential conditions,'' rather than just
stating ``hazard means any condition.'' The commenter recommended that
FTA clearly define the context of real or potential condition. Two
commenters suggested that FTA replace the phrase ``hazardous
condition'' with ``hazard.''
One commenter suggested including a definition of ``medical
attention'' (a term used in Sec. 659.33) and ``first aid.'' Three
commenters suggested that definitions should be included for ``damage
to a system'' and ``damage to the environment,'' terms used in the
definition of ``hazard.'' These commenters suggested that the terms be
quantifiable.
A few commenters suggested that FTA either remove the definition of
``rail transit-controlled property'' or limit its applicability to only
areas that support operations, including revenue facilities.
A few commenters also suggested that changes be made to the
definition of ``individual.'' The comments ranged from deleting the
term to modifying the definition to make it less restrictive. Two
commenters recommended that the definition on ``passenger'' include
``patron'' to address persons who have just used or intend to use the
rail transit system.
One commenter requested that the rule include the definition of
``security breach.'' Finally, one commenter recommended that the rule
define ``qualified professional.''
FTA Response. FTA believes that a Federal standard defining the
real or potential condition for which a rail transit agency must
mitigate as a hazard oversteps the intent of this rule. The rule's
definition of hazard currently allows management and safety
representatives from the rail transit agency--with approval by the
oversight agency and potential review by FTA--the opportunity to
identify and define the ``real or potential condition'' for which the
rail transit agency must mitigate to a level that is acceptable by
management and the state oversight agency.
In response to commenters recommending the replacement of
``hazardous condition'' with ``hazard,'' FTA concurs and has made this
change throughout the rule.
FTA does not agree with the recommendation by the commenter to
remove the definition of ``rail transit-controlled property.'' It is
important to maintain consistency within FTA's data collection
programs, specifically state safety oversight and the National Transit
Database (NTD). Furthermore, through its definition of rail transit-
controlled property, FTA expects that safety or security incidents
occurring on property controlled by the rail transit agency that meet
the accident notification thresholds must be reported to the oversight
agency. We believe that the rail transit agency's hazard identification
process should include all incidents that occur on its property,
regardless of whether or not the activity supports revenue operations.
FTA has chosen to keep the definition of ``individual,'' but add
the term ``person'' to the definition to ensure that anyone involved in
an accident, meeting the thresholds specified in the notification and
investigation sections, is covered by this part. This includes
``pedestrians'' and ``others,'' as specified in the NTD.
FTA does not believe it is appropriate to identify each type of
medical attention that an individual could receive as a result of an
accident, to support notification and investigation thresholds. The
rule is clear that if two or more individuals receive immediate medical
attention away from the scene, the incident qualifies as an accident
under Sec. 659.33 and Sec. 659.35. FTA's intent is to capture serious
events and believes that even if the injuries sustained by two or more
individuals were minor, the accident itself, regardless of the type of
injury, warrants notification and investigation.
[[Page 22566]]
FTA believes that a detailed definition of ``damage'' to the system
or environment is most appropriately developed by the rail transit
agency, with concurrence from the state oversight agency. The threshold
for damage or potential damage to the system, equipment, property or
the environment should be identified during the development of the rail
transit agency's hazard management process. Each property must address
its operating risk in accordance with management's policy for providing
standard care to the rail transit agency's passengers and employees. It
is the oversight agency's responsibility to ensure that the rail
transit agency's level of accepted risk meets the intent of the
oversight agency's program standard and this rule, as well as conform
to the rail transit agency's requirements for mitigating system hazards
and their potential to cause loss.
Defining a ``security breach'' is similar to defining all types of
accidents. Notification and investigation thresholds are determined by
the impact of the accident on the rail transit passengers, employees,
system, and environment. Therefore, security breaches should be
reported when thresholds under Sec. 659.33 and Sec. 659.35 have been
met.
We have not defined ``qualified professional'' or attempted to
regulate minimum qualifications of the individuals involved at either
the state oversight agency or rail transit agency level. The state and
respective rail transit agency should identify and enforce the
qualifications necessary to meet the requirements of this part.
Finally, FTA has made a technical correction to paragraph (2) in the
definition of ``rail fixed guideway system'' to reflect the wording of
the current rule.
Withholding of Funds for Noncompliance
FTA did not propose changes to its criteria for the withholding of
funds for noncompliance. A few commenters recommended that FTA extend
the judgment of noncompliance to include rail transit agencies, rather
than just states. The commenters noted that some states have difficulty
in enforcing part 659 requirements. Two commenters recommended that FTA
also identify the process by which withheld funds would be released.
FTA Response. FTA has clarified that funds will be released if the
Administrator determines that an affected state has achieved compliance
within two years in accordance with 49 U.S.C. 5330. We believe this
provides an adequate level of detail for what is required.
With regard to state difficulties enforcing the part 659
provisions, FTA did not make changes. States are required to ensure
compliance with the provisions of this part. Under 49 U.S.C. 5330, FTA
does not have the authority to regulate state policies for managing
noncompliance. We believe that each state needs to identify its own
enforcement mechanism.
Designation of Oversight Agency
FTA proposed changes to this section to clarify its intent about
event(s) that must prompt oversight agency designation, as well as
FTA's expectation that once designated the oversight agency will ensure
that its program is fully implemented before the initiation of
passenger service.
One commenter recommended that FTA include a provision for when a
state officially moves oversight responsibility to a ``new'' state
organization.
FTA Response. FTA has added language to this section, as well as to
the initial submission element of Sec. 659.9(f) to require a new
oversight agency to submit its initial submission to FTA for review.
Confidentiality of Investigation Reports and Security Plans
FTA did not propose changes to this section.
One commenter raised concerns over past and potential problems in
obtaining accident information from rail transit agencies. The
commenter explained that in their state, an existing Public Records Act
makes accident information available to citizens. Because of the
potential release of accident information, rail transit agencies have
refused to provide their investigation information and reports to the
oversight agency, citing their protection by the rail transit agencies'
attorney-client privilege.
One commenter recommended that security plan directives should
mention other documents that should be controlled, such as drill
coordination plans, training, and emergency management plans.
FTA Response. FTA understands the need for and agrees that safety
and security sensitive information should remain confidential. There is
no language in this regulation that requires the state or rail transit
agency to release information deemed safety or security-sensitive. FTA
recommends that each state identify measures to be taken to ensure that
safety and security sensitive information is not publicly disclosed.
Oversight Agency Program Standard
The NPRM proposed removing the reference to the APTA Manual from
the requirements for a state oversight agency system safety program
standard. This is necessary to facilitate FTA's ability to modify or
revise the minimum requirements of the program standard through the
Federal regulatory process, subject to notice and public comment,
rather than through the revision of an industry manual. In addition,
FTA must address the role of the oversight agency in the implementation
of safety and security program requirements not currently covered in
the APTA Manual. Finally, during FTA's management of the State Safety
Oversight Program, states have requested FTA to identify specific
requirements that states can legislate and subsequently develop state-
specific program standards that, at a minimum, meet FTA's requirements,
but also allow for greater flexibility in implementation.
In its comments to the docket, APTA raised concern over FTA's
proposed elimination of the APTA Manual reference. APTA suggested that
by placing program standard element requirements in the rule, ongoing
changes and revisions would be difficult to implement. In addition,
APTA noted that retention of the APTA Manual would permit the continued
transit industry and Federal government collaboration on important
safety and security issues. APTA noted that by dropping the APTA Manual
reference, there would be significant impacts on system safety,
including the possibility that each state will implement these
specifications differently and a national standard will not be
achieved, and states will only move to meet the minimum requirements,
not the intent of system safety. Finally, APTA suggested that its
adoption of the system safety approach was intended to promote a self-
regulatory process, a process that would be put at risk if the NPRM
were to proceed as written.
One commenter suggested that FTA require the oversight agency to
send a copy of its program standard to all managers of the rail transit
agencies within its jurisdiction. Another commenter recommended FTA
clarify the role of the oversight agency during construction and pre-
revenue phases.
FTA Response. FTA has adopted the proposed rule provision. FTA does
not think it is detrimental to remove the mandatory reference to the
APTA Manual and that it is appropriate to include the program standard
requirements in this rule. FTA does not believe that the rule processes
[[Page 22567]]
undermine system safety. The requirements in the rule for oversight
agency program standard development and rail transit agency system
safety program plan and security plan development is more comprehensive
than the private sector standards. Additional sections have been
included in the regulation to address NTSB recommendations, to
strengthen the internal safety audit process, to improve coordination
with the state oversight agency, and to formalize reporting
requirements. By including all of the provisions in one place, it helps
us meet our goals of maximizing the usability of our regulation and
encouraging full compliance with its provisions. Further, this part
allows for flexibility in application of safety and security
principles, while maintaining the delicate balance of mandatory
compliance for performance.
Federal law, 49 U.S.C. 5330, does not address the authority to be
provided to states to oversee rail transit capital projects before
passenger operations commence. In 1995, FTA concluded that this lack of
definition prevented application of the state safety oversight rule
during the planning, design, and construction of New Starts projects.
However, states with New Starts projects must be in compliance with
each element of part 659 before the initiation of passenger operations.
To facilitate compliance, the rule requires that states make their
oversight agency designation prior to a rail transit agency application
for formula grant money, or at the same time as the execution of a
grant agreement between FTA and the grantee applicant for a New Starts
project. Furthermore, FTA requires that each state submit documentation
identified in Sec. 659.9(d) to FTA within sixty (60) days of
designating its oversight agency.
FTA believes that state oversight agency participation in a
project's developmental phases is critical to the success of the State
Safety Oversight Program and the state's ability to provide effective
oversight during operations. FTA supports states' efforts to
participate during pre-operation by providing a funding mechanism
through its New Starts projects process that allows capital grant
monies to be used for the initial state safety oversight agency program
development.
For those capital projects in states with existing rail transit
agencies and safety oversight agencies and where the rail system is
being modified, extended, or rehabilitated, FTA expects each oversight
agency to participate in the pre-operation phases under the
requirements of this part (Sec. 659.15 and Sec. 659.19(g) and (h)),
but FTA funds may not be used.
Furthermore, there is no requirement in this part that limits a
state's ability to extend its safety oversight in all phases of project
development. FTA encourages this practice and a handful of states
currently have authority to conduct their safety and security oversight
program during the planning, design and construction of a New Starts
system.
System Safety Program Plan
In lieu of the APTA Manual reference, the NPRM laid out the minimum
safety program elements from which states can ensure rail transit
agencies address, as a minimum, their system safety program plans.
FTA's requirements represent a minimum standard that must be addressed
by each rail transit agency and enforced by the state oversight agency.
The NPRM retained the requirement for state oversight agencies to
review and approve a rail transit agency's system safety program plan.
One commenter requested a clarification of the meaning of
``approved''--whether it meant the system safety program plan would be
approved by the oversight agency or the rail transit agency. Another
commenter suggested that the regulation should require a formal letter
of approval from the state oversight agency, accompanied by the
checklist used to review the rail transit agency's system safety
program plan and security plan.
FTA received one comment proposing an ``hours of service''
requirement, limiting the number of hours that safety sensitive
employees can work and providing a minimum number of required hours
off.
Finally, two commenters suggested removing or combining specific
sections of the system safety program plan minimum elements to reduce
what the commenters believed to be redundant--namely removing Sec.
659.19(s) and combining Sec. 659.19(g) and Sec. 659.19(r) under the
heading of ``System Modifications and Configuration Control.''
FTA Response. The final rule requires that the oversight agency
must review and approve the rail transit agency's system safety program
plan. Furthermore, this section requires that the oversight agency,
using a checklist developed by the oversight agency, review the rail
transit agency's system safety program plan against the requirements of
this Part, in addition to the state's own program standard. FTA
recommends that oversight agencies have sufficient authority to carry
out their role; this includes the responsibility for the review and
approval of rail transit agency safety and security plans. FTA intends
that oversight agencies include in their review and approval process
the rail transit agency's operating and maintenance procedures,
rulebook, and special orders.
FTA proposed, and maintains, that the oversight agency issue a
formal letter of approval to the rail transit agency after reviewing
the system safety program plan and security plan. FTA agrees with the
commenter that the oversight agency should include in its formal
submittal to the rail transit agency the checklist used to conduct the
system safety program plan and security plan review.
FTA did not propose an ``hours of service'' requirement in this
part. FTA does not have the authority to regulate in this area.
System Security Plan
The NPRM proposed minimum requirements for an agency security plan
that must be maintained as a separate document.
One commenter recommended that security breaches and other security
issues such as threat and vulnerability assessments should be covered
similarly to safety issues. Another commenter recommended that FTA
modify the security audit requirement so that such audits are conducted
periodically and by qualified professionals.
One commenter suggested that the rule require a security plan that
includes a description of a positive ID program identifying all
contractors, visitors and employees requiring access to the system or
facilities, and tracks all security related IDs, uniforms, or equipment
that may be used as part of the positive ID program.
Finally, two commenters recommended that FTA not require the
oversight agency to conduct an ``on-site'' review of the rail transit
agency security plan.
FTA Response. While FTA has not provided the same level of detail
relating to the security management processes identified by the
commenter, rail transit agencies are required to notify and investigate
security breaches that meet the accident notification and investigation
thresholds in Sec. 659.33 and 35.
While FTA agrees with the importance of positive ID programs and
other access control measures to enhance security at rail transit
systems, FTA does not intend that this rule specify the type of
security strategy to be used by the rail transit agency and monitored
by the state oversight agency.
[[Page 22568]]
Conversely, there is no language in this rule that prevents a rail
transit agency from using such a strategy and, as noted above, FTA
encourages rail transit agencies to monitor access to key areas of the
rail system.
In the NPRM ``Section-by-Section Analysis'' FTA proposed that the
oversight agency conduct its review of the rail transit agency's
security plan on-site at the rail transit agency. FTA agrees with the
commenters who suggested that this requirement places an unnecessary
burden on the oversight agencies in the conduct of their review.
Therefore, we have modified the Final Rule to require that the rail
transit agency must submit its security plan to the oversight agency if
the state has established protocols to protect the security plan from
public disclosure. If the state cannot provide these protections, the
oversight agency must review the security plan on-site at the rail
transit agency. Finally, FTA intends that state oversight agencies
always identify in-house representatives or contract personnel whose
qualifications are sufficient to review a rail transit agency's system
safety program plan and security plan.
Rail Transit Agency Review of its System Safety Program Plan
The NPRM proposed a requirement for the oversight agency to require
the rail transit agency to conduct an annual review of its safety and
security plans.
One commenter requested clarification regarding the level of system
modification that would require resubmission of the rail transit
agency's system safety program plan.
FTA Response. It is the responsibility of the state oversight
agency to develop the criteria for which rail transit agency system
modifications prompt the resubmission and consequent review of the
system safety program plan.
Rail Transit Agency Internal Safety and Security Reviews
FTA proposed a section that requires the oversight agency to
require the rail transit agency to develop and document a process for
performing on-going internal safety and security reviews.
A commenter recommended FTA require a rail transit agency general
manager to sign off on all conducted internal safety and security
audits to ensure management is aware of internal operations and
processes, and that they are effective. Three commenters voiced concern
over outstanding issues at time of certification, suggesting that the
requirement of the rail transit agency's general manager to certify
compliance in its annual report does not address the instance when a
rail transit agency may not be in full compliance with its system
safety program plan, but is still required to certify as such. One of
these commenters proposed specific language indicating certification by
the agency's chief executive officer.
Another commenter requested that FTA shorten the time period
requirement for notifying state oversight agencies of internal safety
audits from 30 days to 10 days. Three commenters recommended
lengthening the time requirement for notifying state oversight agencies
of scheduled internal safety audits, 45 days and 60 days. Finally, one
commenter suggested that the internal safety audit process not be
``reset'' to coincide with the implementation of the new rule, inasmuch
as certain transit operators might currently be dealing with safety
issues in the midst of their audit cycles.
FTA Response. We believe that the Sec. 659.27 proposal that a
certification of compliance issued by the rail transit agency general
manager or executive director be included with the annual report
compiled by the rail transit agency, documenting its internal safety
audit activities, addresses the commenter's request for general
management endorsement. FTA also agrees that the general manager should
not be required to certify compliance if internal safety audits have
identified areas of noncompliance. Consequently, FTA has added the
condition that in those cases where the rail transit agency is not in
compliance with its system safety program plan--or security plan--the
chief executive must identify those areas of noncompliance for the
oversight agency, accompanied with a list of activities the rail
transit agency will take to achieve compliance.
We have not reduced the timeframe for rail transit agency
notification to the state before the conduct of internal safety audits
from at least thirty (30) days to ten (10) days. Internal safety audits
are the means by which a rail transit agency can assess effectiveness
of its own safety program and how well it is being implemented agency-
wide. A rail transit agency must be able to develop a schedule for
these audits and make the schedule available to its oversight agency
thirty (30) days before conducting the internal review. Other
commenters requested the timeframe be expanded to forty-five (45) or
sixty (60) days. FTA believes that thirty (30) days is sufficient for
oversight agency notification since the oversight agency is not
required--but strongly encouraged--to participate in the internal
safety review process.
FTA agrees with the last commenter and will not require the
internal safety audits to be ``reset.'' Instead, the rail transit
agency should continue its cycle of audits in compliance with all other
terms of this rule, regardless of the date this rule goes into effect.
It should be noted, however, that any changes to internal safety audit
procedures or processes as the result of this rule must be implemented
at the date this rule goes into effect.
Oversight Agency Safety and Security Reviews
FTA proposed that the oversight agency must conduct an on-site
review of the rail transit agency's safety and security plans every
three years or in an on-going manner.
One commenter requested that the regulation outline what should be
included in the state oversight agency safety and security review
report. Another commenter recommended that the proposed rule be amended
to clarify that the state oversight agency reserves the right to
conduct an on-site review more frequently than every three years. This
commenter also recommended adding the following language, ``[t]he
oversight agency must prepare and issue a report containing findings,
recommendations, corrective actions, and the rail transit agency's
response to each finding that requires additional action. The rail
transit agency's response shall set a time frame to implement the
corrective actions resulting from the review. The report, 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.''
FTA Response. The oversight agency should be able to determine the
extent of its three-year safety reviews, to effectively evaluate rail
transit agency compliance with state safety oversight requirements. FTA
has shared checklists with oversight agencies and will continue to
facilitate information exchange and coordination within the community.
Many states have slightly different requirements within their
respective program standards. However, FTA disagrees that this part
should identify each element of the safety or security review since it
could limit oversight agencies in their approach to the three-year
safety review.
There is no language in this requirement that precludes the
oversight agency from establishing the right to conduct an on-site
review of the rail transit agency more frequently than every three
years. FTA agrees that the reviews may be conducted in an ``ongoing
manner.''
[[Page 22569]]
FTA disagrees with the commenter that additional language is needed
to address oversight findings from the three-year safety or security
review. Section 659.37 requires that rail transit agencies develop
corrective action plans to address three-year review findings.
Subsequently, the corrective actions must be implemented and tracked
according to Sec. 659.37 requirements.
Hazard Management Process
FTA proposed that each rail transit agency develop and implement a
hazard management process that has been reviewed and approved by the
state oversight agency. Two comments were received. One commenter
agreed with FTA's process while another recommended that FTA delete the
hazard management process section and make reference to it only in the
proposed Sec. 659.13 (system safety program standard) in the NPRM.
FTA Response. We disagree with the commenter who suggested
referencing the hazard management process solely in the system safety
program standard section. The hazard management process is central to
system safety and warrants its own section within this rule.
Accident Notification and Investigation
In the NPRM, FTA proposed revisions to the definition of accident
to provide greater consistency with the notification and investigation
requirements used by the NTSB as well as reporting thresholds
established by FTA's NTD. Further, FTA proposed defining accident in
relation to the activities required by the rail transit agency and
oversight agency after the occurrence of an event deemed an accident.
FTA proposed in the NPRM that 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 thirty
(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.
In addition 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.
A majority of the commenters addressed the definition or thresholds
for accident notification and investigation in several ways. Two
commenters suggested that the two-hour notification requirement adds an
unreasonable burden on the rail transit agency, especially during a
catastrophic event, and recommended that FTA change the time period to
four hours. One commenter recommended that FTA further define what
constitutes ``notification,'' questioning whether or not an individual
from the state oversight agency should be required to be available to
receive the notification twenty-four (24) hours a day, seven (7) days a
week or if it is sufficient that a message is left or fax is sent
within the two (2) hour window. The commenter suggested that this might
influence state resource allocation.
Several commenters expressed concern over the definition of
fatality, noting that a fatality may be difficult to ``[confirm] within
thirty (30) days of a transit incident,'' given increased constraints
on retrieving patient information due to the Health Insurance
Portability and Accountability Act of 1996 (HIPAA). A few commenters
suggested that the 30-day confirmation period should be removed, while
one commenter suggested it be reduced to twenty-four (24) hours.
Several commenters recommended that state oversight agencies be
notified of all fatalities, including suicides. Several of these
commenters noted that the determination of cause of death might not be
made within the first two hours after the incident. Other commenters
noted that FRA and NTSB do not make distinctions between a fatality and
a suicide, and that a situation may occur where the NTSB or FRA may be
notified of a fatality but the state oversight agency would not.
Relating to the notification threshold for injuries, some
commenters recommended that FTA maintain the current definition, which
requires notification by the rail transit agency when an incident
occurs resulting in a single injury instead of ``two or more persons''
in the NPRM. These commenters suggested that under FTA's proposed
threshold for injury, an incident in which a person is struck by a
train and is transported to the hospital would not be reported to the
oversight agency. One commenter also noted that FTA's NTD requires the
reporting of one person injured in a collision occurring on a rail
right-of-way. Other commenters suggested that while the NPRM attempted
to align definitions with NTD, in some areas conflicts remain.
Several commenters objected to the reduction in the property damage
threshold from $100,000 in the current rule to $25,000 in the NPRM.
Many of these commenters indicated that in lowering the threshold, rail
transit agencies and state oversight agencies would face an unnecessary
increase in notifications, and there would be an increased burden in
investigating and tracking these accidents. Most commenters recommended
that FTA maintain the $100,000 property damage notification threshold.
One commenter suggested that the qualification of property damage to
only ``rail transit vehicles, non-rail transit vehicles, [or] other
rail transit property or facilities'' limits applicable items, and that
since the current rule includes all property damage and provides the
necessary information, it should be retained.
Several commenters proposed that FTA either delete the definition
of individual for threshold purposes, or make it broader to ensure that
pedestrians are included. Another commenter suggested that the term
``person'' be used, as no fatality should go unreported.
Some commenters recommended that FTA either add a definition for
``medical attention'' or clarify the term ``injury,'' to clarify that
the intent of the rule is not to require immediate notification for
very minor items.
Some commenters objected to the proposed location of the incident
``involving a rail transit vehicle or taking place on rail transit-
controlled property,'' suggesting that FTA should limit the requirement
for notification to those instances where an event has occurred only
when it involves the operation of the rail transit vehicle, and not in
such places as offices, parking lots and other areas that do not
involve rail transit operations.
In reference to requirements for accident investigation, Sec.
659.29, FTA proposed, ``[t]he 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).'' Relating to the threshold for investigations, one
commenter suggested that the NPRM creates a large investigative
workload. Some
[[Page 22570]]
commenters recommended that FTA also make a distinction between FTA-
reportable (those meeting the fatality, injury, and property damage
thresholds for notification) and non-reportable (namely, the evacuation
and main-line derailment thresholds), to ensure that the non-reportable
incidents are still logged, reviewed and tracked for possible
identification of trends and patterns.
Additionally, the NPRM proposed, ``(b) The oversight agency must
use approved investigation procedures that have been submitted to FTA
as required in the initial submission or annual submission'' and ``(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.''
Some commenters recommended that the required investigation process
for the analysis of probable or multiple causal determinations be
standardized across the industry. Another commenter recommended that
the state oversight agency's procedures include the rail transit
agency's own investigation of the accident.
The NPRM proposed, ``(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.''
One commenter objected to the requirement for the state oversight
agency to approve the rail transit agency investigation report,
indicating that the investigating party must be given autonomy for
findings in the final report and that any state comments should be made
during the drafting phase. Another commenter suggested that the
proposed rule for accident investigations relied on transparency
between the agencies and that the rail transit agencies must release,
or make available, all essential information to the state oversight
agency in order for the state to adequately review the determination of
cause(s).
Finally, one commenter recommended that FTA require sending the
final investigation report to the rail transit agency's executive
director or general manager.
FTA Response. In light of the comments submitted relating to the
accident notification and investigation sections of the rule, FTA has
made changes to these requirements. For instance, we will require the
rail transit agency to notify an oversight agency of all fatalities,
and will not exclude suicides from the notification process. We agree
with those commenters who suggested that the cause of death might not
be readily apparent and that it should not be the role of the rail
transit agency or state oversight agency to make that determination. In
addition, suicides on urban rail systems are a visible problem and the
oversight agency should be notified when they occur. Safety issues may
be involved in these incidents, and corrective actions could
potentially prevent additional suicides.
In reference to the notification threshold for a fatality, FTA
disagrees with the commenters who noted that it might be difficult to
track the status of an individual for thirty (30) days to determine
whether or not the individual has been confirmed dead, thus requiring
notification of the state oversight agency and compliance with
subsequent investigation and corrective action plan requirements.
Furthermore, FTA believes that the rail transit agency's
representative(s) responsible for risk management, legal duties, or
claims will either be notified of the confirmed death or will track
status information. In addition, rail transit agencies must currently
track this information for NTD reporting. For these reasons we did not
revise the 30-day tracking period.
FTA agrees with commenters indicating that noteworthy incidents,
such as a collision between a train and a person would go unreported
under the notification threshold for two (2) or more injuries in the
NPRM. Furthermore, we agree that there are still discrepancies between
notification and investigation thresholds in the NPRM and those of the
data reporting thresholds for ``major events'' within the NTD Program
and notification thresholds for NTSB. While we believe that minor
inconsistencies will remain, we have made changes to the accident
notification and investigation thresholds in an effort to increase the
coordination between the above stated programs. Most significantly, FTA
has changed the accident notification and investigation thresholds to
mirror all eight (8) NTD ``Major Event'' thresholds, not just the first
five (5) thresholds identified in the NPRM. In addition to the five (5)
thresholds identified in the NPRM, rail transit agencies are now also
required to notify state oversight agencies in the event of a mainline
derailment, a collision with person(s) on a rail right-of-way, and a
collision between a rail transit vehicle and another rail transit
vehicle or a transit non-revenue vehicle.
We agree with several commenters who requested greater clarity for
key definitions within the accident notification and investigation
thresholds, namely individual and medical attention. We have more
clearly identified the definition of ``individual'' to include
pedestrians and other persons. While there are distinctions between the
types of individuals, FTA intends that all persons who suffer injuries
that require medical attention away from the scene of the incident or
end in fatality are individuals under this rule. Historically, FTA
excluded the reporting of fatalities and injuries of employees and
trespassers under the State Safety Oversight Program.
FTA agrees with one commenter who recommended FTA clarify that the
intent of this rule is not to require state safety oversight agency
notification for very minor injuries. For consistency, the use of
``immediate medical attention'' in this rule should be interpreted as
it is used under FTA's NTD program. The following is an excerpt from
the NTD reporting manual and clarifies FTA's intent within this rule:
The definition of injury requires immediate medical attention
away from the scene. Immediate medical attention includes, but is
not limited to, transport to the hospital by ambulance. If an
individual is transported immediately from the incident scene to a
hospital or physician's office by another type of emergency vehicle,
by passenger vehicle, or through other means of transport, this is
also considered an injury. An individual seeking medical care
several hours after an incident or in the days following an incident
is not considered to have received immediate medical attention. In
cases that are less clear-cut, reporters should apply their judgment
in determining whether the injury sustained caused the individual to
immediately seek medical attention.
The medical attention received must be at a location other than
the location at which the incident occurred. The intent of this
distinction is to exclude incidents that only require minor first
aid or other assistance received at the scene. This distinction is
not, however, intended to be burdensome for the [rail] transit
agency. It is not a requirement that an agency follow-up on each
person transported by ambulance, for example, to ensure that they
actually received medical attention at the hospital. It is
acceptable to count each person immediately transported by ambulance
as an injury. If, however, an agency representative does choose to
follow-up with the hospital and finds that, though an individual was
transported to the hospital, he did not receive any medical
attention, this
[[Page 22571]]
individual does not need to be reported as an injury.''
We disagree with commenters suggesting that the two-hour
notification requirement does not provide an adequate amount of time
for the rail transit agency to notify the oversight agency, especially
during catastrophic events. While we understand that a catastrophic
event can overwhelm rail transit agency personnel, we believe that two
(2) hours is reasonable and mirrors requirements by the NTSB, and may
provide more time than the ``immediate notification'' required by FRA.
In reference to the format in which notifications are made and
state oversight agency personnel availability, we believe that these
decisions are best left to the state to identify and define. FTA
believes it is reasonable to expect state oversight agency and rail
transit agency representatives to identify a practical process that
ensures the oversight agency is notified appropriately and can carry
out subsequent activities.
We agree with commenters who noted that the qualifying of property
damage as applying only to ``rail transit vehicles, non-rail transit
vehicles, [or] other rail transit property or facilities'' limits
applicable items. To clarify FTA's intent, FTA has removed the
qualifiers and requires notification when an accident equals or exceeds
$25,000 in total accident damage. Consistent with NTD and NTSB
requirements, property damage to both transit and non-transit property
should be included in the estimate. While many commenters objected to
the reduction in the property damage threshold, we believe that the
$25,000 notification and investigation threshold is appropriate and
reflects the current requirements of the NTSB.
FTA disagrees with recommendations to constrain the applicability
of the accident notification and investigation thresholds to only those
incidents ``involving the operation of a transit vehicle,'' ignoring
incidents that occur in parking lots, stations, and other areas of rail
transit property and responsibility. We believe that this rule limits
notification and investigation to only the most serious events that
might occur on rail transit property. As such, we believe that in
accordance with the intent of state safety oversight, these events
should be reported to the state in a timely manner to ensure the
state's ability to investigate and require corrective actions, as
required under Section 5330 of the enabling legislation. Furthermore,
FTA has interpreted the state safety oversight legislation to include
security considerations. In so doing, FTA requires the rail transit
agency to report security incidents that meet the notification
thresholds to the oversight agency. We believe that passenger safety
and security are often interrelated and each passenger should expect to
be free from danger, unintentional or intentional, to the extent that
it is reasonably practicable. As such, we believe that efforts by the
rail transit agency, in accordance with state oversight, should be
applied system-wide and not limited to only specific passenger or
vehicle operations.
As mentioned above, accident investigation thresholds have been
changed to accurately reflect thresholds identified in the NTD major
event category. FTA disagrees with the commenter who suggested that the
NPRM creates a large investigative workload. Under the old definition
of accident, states were required to investigate all single person
events in which an individual was treated for injuries away from the
scene (the majority of these events were slips, trips and falls in
transit stations and vehicles). The new accident investigation
thresholds actually lessen the investigative burden by only requiring
investigation of single person events in which there has been a train/
person collision or a collision between a rail transit vehicle and
another rail transit vehicle or a transit non-revenue vehicle. Some
commenters expressed concern over the exclusion of all single person
events meeting the injury threshold under the old rule. FTA requires
this threshold to be identified in the hazard management process
developed by the rail transit agency. We believe that an effective
identification process within a hazard management resolution program
would include single person events as a source for hazards or potential
hazards. We believe that the changes are necessary to capture incidents
with serious consequences. FTA acknowledges that while one set of
thresholds will not necessarily accommodate different modal
considerations or state and local resource allocation and burden, they
support our intent to standardize the reporting and investigation of
accident causal factors and mitigating activities, and allow us to
identify proactive activities that prevent fatalities, serious injury
and major system loss. Finally, we believe it is imperative that
oversight agencies are notified of accidents within a timeframe
consistent with that of the NTSB notification requirement.
FTA has clarified the investigation reporting requirements to
ensure that rail transit agency investigation reports maintain their
autonomy, while assuring the state's right to conduct its own
investigation. However, FTA kept the requirement for state oversight
agencies to review and approve corrective action plans.
With reference to the requirements for state approval of
investigation reports, FTA agrees with the commenter recommendation to
not require such approval. FTA did not intend the state oversight
agency to formally review and approve the rail transit agency's
investigation report. In those instances where the oversight agency has
authorized the rail transit agency to conduct an investigation on its
behalf, FTA intends that the oversight agency review and approve the
report for the oversight agency's own internal process, not for the
rail transit agency. This investigation report is now the
responsibility of the oversight agency, which must either formally
approve it or amend the report prior to adopting it as its final
investigation report.
FTA also allows the oversight agency to contract for this service
and/or allow the rail transit agency to conduct some of the
investigations. For each accident that meets the investigation
thresholds, the oversight agency must approve the investigation report.
They must also require the rail transit agency to develop corrective
action plans to address accident findings. These plans must then be
reviewed and approved by the oversight agency. In addition, the
oversight agency must establish a process to resolve any disagreements
in the event that the two agencies cannot reach an agreement on the
corrective action plan.
FTA disagrees with the recommendation to require the submission of
the final investigation report to the rail transit agency's chief
executive. While FTA encourages inter and intra-agency communication
and coordination, we did not specify the distribution list for the
final investigation report. However, there is no language in this part
that limits the rail transit agency safety manager from providing the
chief executive with a copy of the investigation report, and FTA
encourages this level of intra-agency coordination.
Finally, FTA recommends that rail transit agencies and oversight
agencies develop investigation procedures and apply them consistently.
However, FTA did not require standardization of the investigation
process across the industry as some commenters recommended. We believe
that there are different, yet equally effective, methods of conducting
accident investigations. Furthermore, we believe it is the
responsibility of rail
[[Page 22572]]
transit agencies and their state oversight agency counterparts to
determine which investigative methodology is most effective.
Corrective Action Plans
FTA proposed that oversight agencies review and formally approve
corrective action plans.
Two commenters recommended that FTA should not require state
oversight agencies to approve corrective action plans. Three commenters
suggested that FTA require corrective actions plans be developed after
safety and security internal audits and any annual reviews that may be
performed by the rail transit agency.
One commenter proposed a clarification change in the language from
``* * * its process for the review and approval of a corrective action
plan,'' to ``* * * the Transit Agency's process for the review and
approval of the corrective action plan.''
FTA Response. FTA disagrees with commenters who suggested that FTA
not require oversight agency review and approval. Given that oversight
agency approval is only necessary for corrective actions developed
resulting from three-year safety and security reviews and the results
from accident investigations, FTA believes that oversight agency
participation is not intrusive or overbearing. State oversight agencies
are required by the enabling legislation to investigate and approve
corrective actions, and FTA believes that an independent assessment of
the developed corrective actions not only meets the intent of safety
oversight, but also provides the necessary objectivity to ensure that
rail transit agencies have prioritized safety and security activities
to meet the most critical and pressing needs.
FTA also disagrees with the commenters that recommend developing
corrective action plans to address findings from rail transit agency
internal audits. FTA believes that some level of autonomy is necessary
when the rail transit agency conducts its own internal safety and
security audit process. We recommend that the state oversight agency
work with the rail transit agency to identify the criteria for which
findings from internal safety and security audits are subject to the
hazard identification and subsequent resolution process.
Oversight Agency Reporting to the Federal Transit Administration
One commenter suggested spreading the reporting requirements
specified in the NPRM over a two-year period so that states operating
under a deficit are not unnecessarily burdened. Two commenters
requested that FTA allow a minimum one-year grace period to states for
implementation of new regulations. One of these commenters went on to
recommend that the rule identify the records required to be maintained
and specify the required retention periods.
One commenter recommended that the rule explicitly specify the
requirements of the initial submission, including its program standard,
procedures or process for reviewing and approving the rail transit
agencies' system safety program plans, investigatory procedures, and
criteria for the development of the rail transit agencies' corrective
action plans to correct, eliminate, minimize or control investigated
hazardous conditions. The commenter went on to recommend that the rule
explicitly name the types of periodic submissions that FTA may request.
Three commenters suggested that the rule provide a list of any
records that must be maintained by the oversight agency and specify the
required retention periods. Two of those commenters stated that the
rule should also provide the same information for transit agencies.
Finally, one commenter suggested that reporting requirements were
too burdensome to states and FTA should identify a mechanism to improve
the effectiveness of annual reporting without affecting the quality of
reporting.
FTA Response. FTA asked commenters to make recommendations in
reference to the timeframe for requiring initial submissions, once the
state safety oversight rule takes effect. Two commenters recommended
providing one year from the rule's date of effectiveness to achieve
compliance. One commenter suggested that one year may be too ambitious
and requested that states be allowed extensions if needed, due to
legislation issues. FTA agrees and will allow one year from the rule's
date of effectiveness for states to comply with rule requirements.
However, in those cases where state legislatures may only meet once
every two years, FTA may entertain an exception to the compliance date.
FTA will address this subject through future guidance.
FTA expects that each oversight agency will submit its entire
program standard and all program procedures developed to support the
oversight activities required by this rule. This includes all
procedures associated with the oversight agency's implementation of its
program identified in Sec. 659.19 and each procedure that requires
action by the oversight agency. FTA disagrees that we should identify
every procedure to be submitted and believes that it is not necessary
to burden the rule with what may be redundant requirements, without
greater justification.
While one commenter presented an exhaustive list of information FTA
may request as part of a periodic submission, FTA believes it is
unnecessary to identify each potential submission in the text of the
rule. Instead, FTA will identify needed material on a case-by-case
basis and work with the oversight agency to obtain needed material.
Similarly, FTA decided not to identify records that the oversight
agency should maintain. We believe that the oversight agency should
maintain the necessary records for the effective development,
management, and implementation of its oversight duties.
FTA is requiring electronic data collection for oversight agency
reporting. FTA agrees that the quality of information collected is of
the greatest importance.
Conflict of Interest
The NPRM proposed that the oversight agency must prohibit a party
or entity from providing services to both the oversight agency and the
rail transit agency, when a conflict of interest exists.
A few commenters suggested that FTA either define conflict of
interest in the rule, or provide a clarification of the scope of
services to be performed by a contractor. One commenter also suggested
that this might limit the number of contractors eligible to compete for
proposals.
FTA Response. The intent of state safety oversight is to establish
an independent agency to oversee the implementation of safety and
security programs by the rail transit agency. The independent agency
must adhere to the requirements in this rule and ensure that any rail
transit agency within its jurisdiction also adheres to these
requirements. FTA believes that the state designated agency must
function without prejudice; this extends to procuring a contractor to
perform oversight activities. The selected contractor must be able to
perform its duties on behalf of the state with the same level of
impartiality, without conflict of interest. FTA believes it is in the
best interest of the State Safety Oversight Program to take steps to
ensure that contractors can effectively perform their duties without
bias. FTA also believes that each state is in a better position to
define the conflict of interest provisions necessary to meet the intent
[[Page 22573]]
of state safety oversight while contracting for services.
VI. Section-by-Section Analysis
Purpose (Sec. 659.1)
This section explains that FTA is implementing the requirements of
49 U.S.C. 5330, which requires a state to establish an agency to
oversee the safety of rail fixed guideway systems. This rule directs
the oversight agency to develop a program standard, including a
security element, and to require the rail transit agency to develop a
security plan and a separate system safety program plan that complies
with the program standard and requirements of this rule. In addition,
the oversight agency must conduct safety and security reviews and
ensure the conduct of accident and hazard investigations. The oversight
agency must also ensure that corrective action plans are developed and
implemented to address findings from accident and hazard investigations
and track implementation to resolution. The oversight agency must
ensure that the rail transit agency implements its system safety
program plan and security plan effectively.
Scope (Sec. 659.3)
This section explains that the rule applies only to states with
rail fixed guideway systems, as defined in this part.
Definitions (Sec. 659.5)
Contractor
``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
``Corrective action plan'' means a plan developed to set forth the
actions the ``rail transit agency'' will take to minimize, control,
correct, or eliminate ``hazards,'' and the schedule for implementation
for those actions.
FRA
``FRA'' means the Federal Railroad Administration, an agency within
the U.S. Department of Transportation.
FTA
``FTA'' means the Federal Transit Administration, an agency within
the U.S. Department of Transportation.
Hazard
``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
``Individual'' means a passenger; employee; contractor; other rail
transit facility worker; pedestrian; trespasser; or any person on rail
transit-controlled property.
Investigation
``Investigation'' means the process used to determine the causal
and contributing factors of an accident or hazard, so that actions can
be identified to prevent recurrence. The oversight agency is ultimately
responsible for the conduct of the investigation and the resulting
findings. An investigation may be conducted by an entity acting on
behalf of the oversight agency, providing the procedures to be used
during the investigation have been reviewed and approved by the
oversight agency and submitted to FTA. If the rail transit agency
conducts the investigation on behalf of the oversight agency, the
oversight agency must either adopt the findings from the investigation
or successfully negotiate any disputes that result from the findings.
In the event there is a dispute over investigation findings, if there
is no resolution, the oversight agency must either conduct its own
investigation or amend the rail transit agency findings with its
opinion. There must not be conflicting corrective actions to address
investigation findings.
New Starts Project
``New Starts Project'' means any rail fixed guideway system funded
under FTA's 49 U.S.C. 5309 discretionary construction program.
Oversight Agency
``Oversight Agency'' means the entity, other than the rail transit
agency, designated by the state or several states to implement this
part.
Passenger
``Passenger'' means a person who is on board, boarding, or
alighting from a rail transit vehicle for the purpose of travel. The
intent of this definition is to make a distinction between individuals
that are physically on the rail transit vehicle, or those in the
process of entering or leaving the rail transit vehicle, and non-
passengers such as pedestrians or trespassers as categorized under the
National Transit Database (NTD).
Passenger Operations
``Passenger operations'' means the period of time commencing when
any aspect of rail transit agency operation is initiated with the
intent to carry passengers. In the previous rule, there was confusion
over the definition of revenue service; did it mean the period the
agency opened its doors to the public, or simply when a passenger
boarded the first rail transit vehicle of the day. In this rule, FTA
uses the former definition. Once the rail transit agency initiates its
first action with the intent to carry passengers, it is considered to
be in passenger operations.
Program Standard
``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
``Rail fixed guideway system'' means 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,
or receives 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
``Rail transit agency'' means an entity that operates a rail fixed
guideway system. If the grantee has contracted out operations and
maintenance of the rail fixed guideway system, it maintains full
accountability to ensure that all requirements identified in the
oversight agency's program standard and this rule are met.
Rail Transit-Controlled Property
``Rail transit-controlled property'' means property that is used by
the rail transit agency and may be owned, leased, or maintained by the
rail transit agency. FTA does not distinguish between different types
of rail transit-controlled property, meaning that an accident meeting
the notification and investigation thresholds of this section must
prompt notification of the oversight agency, regardless of where it
occurred on rail transit-controlled property.
[[Page 22574]]
Rail Transit Vehicle
``Rail transit vehicle'' means the rail transit agency's rolling
stock. This definition includes vehicles used for carrying
``passengers'' and providing maintenance (i.e., high-rail vehicle).
Safety
``Safety'' means freedom from harm resulting from unintentional
acts or circumstances.
Security
``Security'' means freedom from harm resulting from intentional
acts or circumstances. Intentional danger includes crimes and must be
reported to the oversight agency if the intentional act meets the
thresholds for notification as specified in this rule.
State
``State'' means a State of the United States, the District of
Columbia, Puerto Rico, the Northern Mariana Islands, Guam, American
Samoa, and the Virgin Islands.
System Safety Program Plan
``System safety program plan'' means a document developed and
adopted by the rail transit agency, describing its safety policies,
objectives, responsibilities, and procedures.
System Security Plan
``System security plan'' means a document developed and adopted by
the rail transit agency, describing its security policies, objectives,
responsibilities, and procedures. The system security plan must be a
separate document from the system safety program plan.
Withholding of Funds for Noncompliance (Sec. 659.7)
Authority for this section is based on 49 U.S.C. 5330, which
directs FTA to withhold federal funding from a state or an urbanized
area in the state. FTA is authorized to withhold up to five percent of
an affected urbanized area's apportionment if FTA determines the state
is not in compliance or making adequate efforts to comply with the
rule. Withheld formula funds will be restored if the state is in
compliance within two (2) years.
Designation of Oversight Agency (Sec. 659.9)
This section directs the state to select an agency to oversee the
rail fixed guideway system and prohibits the state from selecting the
rail transit agency to perform this role. It also prohibits the state
from selecting an agency for which a conflict of interest--as
determined by FTA--exists that would prevent the oversight agency from
carrying out its activities in an unbiased manner.
The rule requires that the state's designation, at a minimum,
coincides with the execution of a grant agreement between FTA and the
rail transit agency for a New Starts project or prior to the
application for any formula funds.
Designation means that the Governor for the affected state would
identify an agency, and a point of contact from that agency who will
assume oversight responsibility. Designation, for purposes of the final
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.
After designation, the state would have sixty (60) days to provide
FTA with a designation submission, which would include: (1)
Identification of the agency most likely to provide oversight; (2) a
description of its current authorities relating to rail transit safety
and security oversight; (3) a point of contact within the designated
agency to coordinate program development with FTA; (4) identification
of any potential conflicts of interest between the designated agency
and the rail transit agency, based on financial or shared management
responsibilities; and (5) a proposed schedule describing major
milestones to ensure implementation of the state's oversight program
before the start of passenger operations at the rail transit agency.
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 each
state. After the states designate an agency, a single program standard,
adopted by each state, must be developed to implement state safety
oversight program requirements. This will allow the rail transit agency
to develop a seamless program that is equally applicable in all
affected states, rather than being burdened with requirements from two
or more states.
States that have already designated an approved agency to FTA are
not required to re-designate. However, if a state changes its
designation, the new oversight agency must submit a new initial
submission to FTA within thirty (30) days of the change, consistent
with Sec. 659.39.
Confidentiality of Investigation Reports (Sec. 659.11)
This section allows states to prohibit an investigation report
prepared or adopted by the oversight agency from being admitted into
evidence or used in a civil action. In addition, this part does not
require public availability of the rail transit agency's security plan.
Oversight Agency Overview and Program Standard (Sec. 659.13-15)
This rule removes the reference to the APTA Manual from the
requirements for a State Safety Oversight Program standard. FTA has
prepared a list of nine (9) elements that must be included in a program
standard, including minimum requirements to address oversight agency
authority and specific interfaces with the rail transit agency.
The program standard must address both safety and security and be
submitted to FTA with the oversight agency's initial submission. If the
oversight agency modifies its program standard it must submit the
revised version to FTA.
System Safety Program Plan (Sec. Sec. 659.17-19)
The 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. FTA
has identified twenty-one (21) elements that, at a minimum, must be
addressed by the rail transit agency. The rail transit agency must
submit its system safety program plan--and any subsequent revisions--to
the oversight agency for review and approval.
System Security Plan (Sec. Sec. 659.21-23)
The rule requires that the system security plan is developed and
maintained separately from the rail transit agency's system safety
program plan. FTA considers the system security plan to be sensitive
information and has not established any requirements preventing the
state, oversight agency, or rail transit agency from protecting the
system security plan and any referenced procedures from public
disclosure. The oversight agency and rail transit agency must identify
a process by which the oversight agency can review and approve the
system security plan without compromising sensitive information.
Throughout this process, the transit system and the oversight agency
must comply with all regulations relating to the non-disclosure of
sensitive information in 49 CFR part 1520.
[[Page 22575]]
FTA, to the best of its knowledge, has not established any
requirements for the system security plan that are in conflict with
Department of Homeland Security (DHS) directives. The DHS is the lead
Federal agency on security matters, including transportation, and FTA
collaborates closely with them.
Annual Review of System Safety Program Plan and System Security Plan
(Sec. 659.25)
The rule specifies 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
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 must submit the modified plan and any subsequently
modified procedures to the oversight agency for review and approval.
When the plan is approved, the oversight agency must issue a formal
letter of approval to the rail transit agency.
In the event that the system security plan is modified, the rail
transit agency is required to make it available to the oversight agency
for review and approval. When the plan is approved, the oversight
agency must issue a formal letter of approval to the rail transit
agency.
Internal Safety and Security Reviews (Sec. 659.27)
Each rail transit agency must conduct internal safety and security
reviews as described in its procedures. The rail transit agency must
document this process in its system safety program plan for review and
approval by the oversight agency. The rail transit agency must notify
the oversight agency at least thirty (30) days before conducting a
scheduled review, in a manner acceptable to the oversight agency
without placing undue burden on the rail transit agency.
The internal safety and security reviews must be conducted
throughout the year, with all elements to be reviewed completed within
a three-year cycle. The rail transit agency must provide the oversight
agency with all checklists and procedures used to conduct its safety
reviews, and make available checklists and procedures for conducting
security reviews, provided this does not compromise sensitive
information.
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 section of this report must be made available to the
oversight agency in a manner that does not compromise sensitive
information. 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. In the event that the rail transit agency is not in compliance
with its own system safety program plan or security plan, the rail
transit agency must identify the actions it is taking to achieve
compliance, including a schedule and the department that is
responsible. The oversight agency must formally review and approve this
report.
Oversight Agency Safety and Security Reviews (Sec. 659.29)
At least every three (3) 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. The rule also
requires that the oversight agency prepares and issues a report
containing findings and recommendations resulting from that review,
which, at a minimum, must include an analysis of the effectiveness of
the system safety program plan and the security plan and a
determination of whether either should be updated. Based on the results
of this on-site review, the oversight agency must ensure that
corrective action plans are developed to address review findings.
The rail transit agency's system safety program plan and system
security plan may be reviewed in an ongoing manner over the three-year
timeframe, or in a comprehensive on-site review, once every three
years.
Hazard Management Process (Sec. 659.31)
The rule requires the rail transit agency to develop a process to
identify and resolve hazards during operation, system extensions,
modifications, or changes (including procedural 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 ongoing role in the rail transit agency's
hazard identification and resolution process.
As part of the system safety program plan, the oversight agency
must require the rail transit agency to develop 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 hazards; (5) define minimum
thresholds for the notification and reporting to oversight agencies of
hazards; and (6) specify the process by which the rail transit agency
will provide on-going reporting of hazard resolution activities to the
oversight agency.
Accident Notification (Sec. 659.33)
The oversight agency must require the rail transit agency to notify
the oversight agency within two (2) hours of any incident involving a
rail transit vehicle or taking place on rail transit-controlled
property, where one or more of the following occurs:
(1) A fatality at the scene; or where an individual is confirmed
dead within thirty (30) days of a rail transit-related incident;
(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, and non-transit
property that equals or exceeds $25,000;
(4) An evacuation due to life safety reasons;
(5) A collision at a grade crossing;
(6) A main-line derailment;
(7) A collision with an individual on a rail right of way; or
(8) A collision between a rail transit vehicle and another rail
transit vehicle or a rail transit non-revenue vehicle.
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,
trespassers, or other persons.
For rail transit agencies that share track with the general
railroad system and are subject to FRA notification requirements, the
rule requires notifying the oversight agency 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 the FRA's waiver process at 49 CFR parts 209 and
211.
The rule requires that the oversight agency identify in its program
standard
[[Page 22576]]
the information to be provided by the rail transit agency with the
method of notification.
Investigations (Sec. 659.35)
At a minimum the oversight agency must investigate, or cause to be
investigated, any incident involving a rail transit vehicle or taking
place on rail transit-controlled property meeting the notification
thresholds identified in the notification Sec. 659.33(a).
These thresholds correspond closely to the thresholds required by
the NTSB for rail transit agency notification of events that may be
subsequently investigated by the NTSB, as well as the thresholds
identified in the NTD for major incidents.
In meeting this requirement, the oversight agency must 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 must do so formally and 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.
The rule specifies that each investigation must be documented in a
final report that includes a description of investigation activities,
causal factors and contributing factors, and a corrective action plan.
The rule provides 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 updates or preliminary findings should also
be submitted according to a timeframe specified by the oversight
agency.
The oversight agency is ultimately responsible for the
investigation and the final report. The oversight agency may adopt the
final report, findings, and corrective actions submitted by the rail
transit agency or conduct its own investigation to determine findings.
If a dispute relating to investigation findings should arise between
the oversight agency and the rail transit agency, the oversight agency
is responsible for resolving the dispute to ensure that corrective
actions are developed to address report findings and requiring periodic
status reports that document investigation activities and findings.
Corrective Action Plans (Sec. 659.37)
The rule consolidates all requirements for corrective action plans
into a single section. The rule specifies that the oversight agency, 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 and contributing 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 hazards are to be specified by the rail
transit agency in the hazard management process.
The rule specifies that each corrective action plan must identify
the action to be taken by the rail transit agency, the schedule for its
implementation, and the department responsible for its implementation.
The corrective action plan must be reviewed and formally approved by
the oversight agency. The oversight agency is required to monitor the
implementation of each approved corrective action plan.
The 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 describing the status of each corrective action(s) not
completely implemented as described in the corrective action plan.
Oversight Agency Report to the Federal Transit Administration (Sec.
659.39)
The rule requires that all submissions to FTA be made
electronically. 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 Web site. Until the system is in
place, FTA requires that annual submissions be made through electronic
mail or on CD-ROM through regular mail. Oversight agencies will be
notified when the Internet-based system is operational.
For initial submissions, the rule specifies that each designated
oversight agency must submit to FTA: (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. 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 than 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 the time frame
proposed by the state in its designation submission and approved by
FTA.
This rule requires that oversight agencies make annual submissions
prior to March 15 of each year using a reporting system specified by
FTA. The annual submission would require the following: (1) Publicly
available annual report summarizing its oversight activities for the
preceding twelve months; (2) report documenting and tracking findings
from three-year safety and security review activities, and whether a
three-year safety or security review has been completed since the last
annual report was submitted; and (3) program standard and supporting
procedures that have changed during the preceding year.
Finally, FTA has the authority to request periodic submissions from
oversight agencies, which may include status reports for accident
investigations, hazards, and corrective action plans.
Conflict of Interest (Sec. 659.41)
This rule requires the oversight agency to prohibit a person or
entity from providing services to both the state safety oversight
agency and rail transit agency when a conflict of interest exists.
Certification of Compliance (Sec. 659.43)
This rule requires that each oversight agency annually certify
electronically to FTA that it has complied with the requirements of the
State Safety Oversight Program. The oversight agency must maintain a
signed copy of each annual certification, subject to audit by FTA.
VII. Distribution and Derivation Tables
Distribution Table
------------------------------------------------------------------------
Old section New section(s)
------------------------------------------------------------------------
659.1..................................... 659.1
659.3..................................... 659.3
659.5..................................... 659.5
659.7..................................... 659.7
659.21.................................... 659.9
659.23.................................... 659.11
659.31.................................... 659.13 and 659.15
659.33.................................... 659.17, 659.19, and 659.21
659.23.................................... N.A.
N.A....................................... 659.25
659.35.................................... 659.27
659.37.................................... 659.29
659.39.................................... 659.31 and 659.33
659.41.................................... 659.35
[[Page 22577]]
659.43.................................... 659.37
659.45.................................... 659.39
N.A....................................... 659.41
659.47.................................... None
659.49.................................... 659.43
------------------------------------------------------------------------
Derivation Table
------------------------------------------------------------------------
New section Old section(s)
------------------------------------------------------------------------
659.1..................................... 659.1
659.3..................................... 659.3
659.5..................................... 659.5
659.7..................................... 659.7
659.9..................................... 659.21
659.11.................................... 659.23
659.13.................................... 659.31
659.15.................................... 659.31
659.17.................................... 659.33
659.19.................................... New
659.21.................................... 659.33
659.23.................................... New
659.25.................................... New
659.27.................................... 659.37
659.29.................................... 659.39
659.31.................................... New
659.33.................................... 659.39
659.35.................................... 659.41
659.37.................................... 659.43
659.39.................................... 659.45
659.41.................................... New
659.43.................................... 659.49
------------------------------------------------------------------------
VIII. Regulatory Process Matters
Executive Order 12866
The Office of Management and Budget (OMB) has determined that OMB
review under EO 12866 is not necessary. While the economic impact of
this rulemaking is not anticipated to be significant because the
changes are incremental in nature, FTA recognizes that this rule
affects state governments, may be of congressional interest and makes
changes to important DOT policy. These changes include replacing a
referenced industry manual as the guideline for program compliance with
proposed minimum requirements, revised thresholds for accident
notification and investigation, clarification of critical processes
such as the management of hazardous conditions, and additional
definitions. For these reasons, this rule is a significant regulation
under the Department's Regulatory Policies and Procedures.
In 1995, FTA evaluated the industry-wide costs and benefits of part
659 before this revision. 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. FTA estimates the annual cost of this 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--this
represents a nearly $800,000 increase over the previous rule. The
$800,000 difference between the previous cost of implementing the rule
and the annual cost of implementing this revised rule over the next 10
years is mostly caused by continued program growth (i.e., addition of
seven (7) rail transit agencies and new states by the year 2013). When
estimating costs for this 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 previous rule's requirements and outreach
with state and rail transit agency representatives. FTA believes that
while the estimate for the 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 rule requirements.
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 these rule changes
on small entities and has determined that there will not be a
significant impact on a substantial number of these entities; only
larger rail transit agencies and oversight agencies (such as state
departments of transportation and public utility commissions) will be
affected. The original analysis for the 1995 final rule determined that
there would be no significant impact on small entities. This rule
merely makes 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.
Unfunded Mandates Reform Act of 1995
This rule will 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 rule will not result in state, local, and tribal
governments or the private sector incurring aggregate expenditures of
$100 million or more in any one year, adjusted for inflation (2 U.S.C.
1532). As noted above, the estimated $2.1 million annual cost of
implementing the rule is well below this threshold.
Executive Order 13132 (Federalism Assessment)
Prior to the publication of the original State Safety Oversight
rule, FTA conducted a Federalism Assessment according to the
requirements of Executive Order 12612, which has since been revoked and
replaced by the above-referenced order. Refer to 60 FR 67041 (December
27, 1995). Because the state safety oversight requirements are already
in place, and this 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 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.
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
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. This 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 November 2002 (OMB 2132-0558). Since
this rule will result in additional or altered paperwork collection
burdens, FTA will submit this requirement to the Office of Information
and Regulatory Affairs of the OMB for review.
The estimated burden for information collection requirements is an
annualized 26,502 hours and $927,600 for oversight agencies and 33,244
hours and $1,163,540 for rail transit agencies. These numbers relate to
the burdens of the entire rule as amended, distinct from incremental
burdens of the changes.
National Environmental Policy Act
FTA has analyzed this action for the purpose of compliance with the
[[Page 22578]]
National Environmental Policy Act (42 U.S.C. 4321 et seq.) and has
determined that this rulemaking will not have any effect on the quality
of the human environment.
List of Subjects in 49 CFR Part 659
Grant Programs--Transportation, Mass Transportation, Reporting and
recordkeeping requirements, Safety, Security, Transportation.
0
For the reasons described in the preamble, FTA revises part 659 to read
as follows:
PART 659--RAIL FIXED GUIDEWAY SYSTEMS; STATE SAFETY OVERSIGHT
Subpart A--General Provisions
Sec.
659.1 Purpose.
659.3 Scope.
659.5 Definitions.
Subpart B--Role of the State
659.7 Withholding of funds for noncompliance.
659.9 Designation of oversight agency.
659.11 Confidentiality of investigation reports and security plans.
Subpart C--Role of the State Oversight Agency
659.13 Overview.
659.15 System safety program standard.
659.17 System safety program plan: general requirements.
659.19 System safety program plan: contents
659.21 System security plan: general requirements.
659.23 System security plan: contents.
659.25 Annual review of system safety program plan and system
security plan.
659.27 Internal safety and security reviews.
659.29 Oversight agency safety and security reviews.
659.31 Hazard management process.
659.33 Accident notification.
659.35 Investigations.
659.37 Corrective action plans.
659.39 Oversight agency reporting to the Federal Transit
Administration.
659.41 Conflict of interest.
659.43 Certification of compliance.
Authority: 49 U.S.C. 5330.
Subpart A--General Provisions
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 only to states with rail fixed guideway systems,
as defined in this part.
Sec. 659.5 Definitions.
Contractor means an entity that performs tasks required 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 describes the actions the rail transit agency will take to
minimize, control, correct, or eliminate hazards, and the schedule for
implementing those actions.
FRA means the Federal Railroad Administration, an agency within the
U.S. Department of Transportation.
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; other rail
transit facility worker; pedestrian; trespasser; or any person on rail
transit-controlled property.
Investigation means the process used to determine the causal and
contributing factors of an accident or hazard, so that actions can be
identified to prevent recurrence.
New Starts Project means any rail fixed guideway system funded
under FTA's 49 U.S.C. 5309 discretionary construction program.
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 when any aspect of
rail transit agency operations are 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 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
or receives 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 used 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,
including but not limited to passenger and maintenance vehicles.
Safety means freedom from harm resulting from unintentional acts or
circumstances.
Security means freedom from harm resulting from intentional acts or
circumstances.
State means a State of the United States, the District of Columbia,
Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and
the Virgin Islands.
System Safety Program Plan means a document developed and adopted
by the rail transit agency, describing its safety policies, objectives,
responsibilities, and procedures.
System Security Plan means a document developed and adopted by the
rail transit agency describing its security policies, objectives,
responsibilities, and procedures.
Subpart B--Role of the State
Sec. 659.7 Withholding of funds for noncompliance.
(a) The Administrator of the FTA may withhold up to five percent of
the amount required to be distributed to any state or affected
urbanized area in such state under FTA's formula program for urbanized
areas, if:
(1) The state in the previous fiscal year has not met the
requirements of this part; and
(2) The Administrator determines that the state is not making
adequate efforts to comply with this part.
(b) The Administrator may agree to restore withheld formula funds,
if compliance is achieved within two years (See 49 U.S.C. 5330).
Sec. 659.9 Designation of oversight agency.
(a) General requirement. Each state with an existing or anticipated
rail fixed guideway system regulated by this part shall designate an
oversight agency consistent with the provisions of this section. 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
[[Page 22579]]
agency, as the oversight agency to implement the requirements in this
part. The state's designation or re-designation of its oversight agency
and submission of required information as specified in this section,
are subject to review by FTA.
(b) Exception. States which have designated oversight agencies for
purposes of this part before May 31, 2005 are not required to re-
designate to FTA.
(c) Timing. The state designation of the oversight agency shall:
(1) Coincide with the execution of any grant agreement for a New
Starts project between FTA and a rail transit agency within the state's
jurisdiction; or
(2) Occur before the application by a rail transit agency for
funding under FTA's formula program for urbanized areas (49 U.S.C.
5336).
(d) Notification to FTA. Within (60) days of designation of the
oversight agency, the state must submit to FTA the following:
(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 with responsibility for oversight
activities;
(4) A description of the organizational and financial relationship
between the designated oversight agency and the rail transit agency;
and
(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. 659.39(a).
(e) Multiple states. In cases of 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; and
(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.
(f) Change of designation. Should a state change its designated
oversight agency, it shall submit the information required under
paragraph (d) of this section to FTA within (30) days of its change. In
addition, the new oversight agency must submit a new initial
submission, consistent with Sec. 659.39(b), within (30) days of its
designation.
Sec. 659.11 Confidentiality of investigation reports and security
plans.
(a) A state may withhold an investigation report that may have been
prepared or adopted by the oversight agency from being admitted as
evidence or used in a civil action for damages resulting from a matter
mentioned in the report.
(b) This part does not require public availability of the rail
transit agency's security plan and any referenced procedures.
Subpart C--Role of the State Oversight Agency
Sec. 659.13 Overview.
The state oversight agency is responsible for establishing
standards for rail safety and security practices and procedures to be
used by rail transit agencies within its purview. In addition, the
state oversight agency must oversee the execution of these practices
and procedures, to ensure compliance with the provisions of this part.
This subpart identifies and describes the various requirements for the
state oversight agency.
Sec. 659.15 System safety program standard.
(a) General requirement. Each state oversight agency shall develop
and distribute a program standard. The program standard is a
compilation of processes and procedures that governs the conduct of the
oversight program at the state oversight agency level, and provides
guidance to the regulated rail transit properties concerning processes
and procedures they must have in place to be in compliance with the
state safety oversight program. 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.
(b) Contents. Each oversight agency shall develop a written program
standard that meets the requirements specified in this part and
includes, at a minimum, the areas identified in this section.
(1) Program management section. This section shall include an
explanation of the oversight agency's authority, policies, and roles
and responsibilities for providing safety and security oversight of the
rail transit agencies within its jurisdiction. This section shall
provide an overview of planned activities to ensure on-going
communication with each affected rail transit agency relating to safety
and security information, as well as FTA reporting requirements,
including initial, annual and periodic submissions.
(2) Program standard development section. This section shall
include a description of the oversight agency's process for the
development, review, and adoption of the program standard, the
modification and/or update of the program standard, and the process by
which the program standard and any subsequent revisions are distributed
to each affected rail transit agency.
(3) Oversight of rail transit agency internal safety and security
reviews. This section shall specify the role of the oversight agency in
overseeing the rail transit agency internal safety and 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 reports on
findings, which must be submitted under the signature of the rail
transit agency's top management.
(4) Oversight agency safety and security review section. This
section shall lay out the process and criteria to be used at least
every three years in conducting a complete review of each affected rail
transit agency's implementation of its system safety program plan and
system security plan. This section includes the process to be used by
the affected rail transit agency and the oversight agency to manage
findings and recommendations from this review. This also includes
procedures for notifying the oversight agency before the rail transit
agency conducts an internal review.
(5) Accident notification section. This section shall include the
specific requirements for the rail transit agency to notify the
oversight agency of accidents. This section shall also include required
timeframes, methods of notification, and the information to be
submitted by the rail transit agency. Additional detail on this portion
is included in Sec. 659.33 of this part.
(6) Investigations section. This section contains the oversight
agency identification of the thresholds for incidents that require an
oversight agency investigation. The roles and responsibilities for
conducting investigations shall include: coordination with the rail
transit agency investigation process, the role of the oversight agency
in supporting investigations and findings conducted by the NTSB, review
and concurrence of investigation report findings, and procedures for
protecting the confidentiality of investigation reports.
[[Page 22580]]
(7) Corrective actions section. This section shall specify
oversight agency criteria for the development of corrective action
plan(s) and the process for the review and approval of a corrective
action plan developed by the rail transit agency. This section shall
also identify the oversight agency's policies for the verification and
tracking of corrective action plan implementation, and its process for
managing conflicts with the rail transit agency relating to
investigation findings and corrective action plan development.
(8) System safety program plan section. This section shall specify
the minimum requirements to be contained in the rail transit agency's
system safety program plan. The contents of the system safety plan are
discussed in more detail in Sec. 659.19 of this part. This section
shall also specify information to be included in the affected rail
transit agency's system safety program plan relating to the hazard
management process, including requirements for on-going communication
and coordination relating to the identification, categorization,
resolution, and reporting of hazards to the oversight agency. More
details on the hazard management process are contained in Sec. 659.31
of this part. This section shall also describe the process and
timeframe through which the oversight agency must receive, review, and
approve the rail transit agency system safety program plan.
(9) System security plan section. This section shall specify the
minimum requirements to be included in the rail transit agency's system
security plan. More details about the system security plan are
contained in Sec. Sec. 659.21 through 659.23 of this part. This
section shall also describe the process by which the oversight agency
will review and approve the rail transit agency system security program
plan. This section also shall identify how the state will prevent the
system security plan from public disclosure.
Sec. 659.17 System safety program plan: general requirements.
(a) The oversight agency shall 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 oversight agency shall review and approve the rail transit
agency system safety program plan.
(c) After approval, the oversight agency shall issue a formal
letter of approval to the rail transit agency, including the checklist
used to conduct the review.
Sec. 659.19 System safety program plan: contents.
The system safety plan shall include, at a minimum:
(a) A policy statement signed by the agency's chief executive that
endorses the safety program and describes the authority that
establishes the system safety program plan.
(b) A clear definition of the goals and objectives for the safety
program and stated management responsibilities to ensure they are
achieved.
(c) An overview of the management structure of the rail transit
agency, including:
(1) An organization chart;
(2) A description of how the safety function is integrated into the
rest of the rail transit organization; and
(3) Clear identification of the lines of authority used by the rail
transit agency to manage safety issues.
(d) The process used to control changes to the system safety
program plan, including:
(1) Specifying an annual assessment of whether the system safety
program plan should be updated; and
(2) Required coordination with the oversight agency, including
timeframes for submission, revision, and approval.
(e) A description of the specific activities required to implement
the system safety program, including:
(1) Tasks to be performed by the rail transit safety function, by
position and management accountability, specified in matrices and/or
narrative format; and
(2) Safety-related tasks to be performed by other rail transit
departments, by position and management accountability, specified in
matrices and/or narrative format.
(f) A description of the process used by the rail transit agency to
implement its hazard management program, including activities for:
(1) Hazard identification;
(2) Hazard investigation, evaluation and analysis;
(3) Hazard control and elimination;
(4) Hazard tracking; and
(5) Requirements for on-going reporting to the oversight agency
relating to hazard management activities and status.
(g) 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.
(h) A description of the safety certification process required by
the rail transit agency to ensure that safety concerns and hazards are
adequately addressed prior to the initiation of passenger operations
for New Starts and subsequent major projects to extend, rehabilitate,
or modify an existing system, or to replace vehicles and equipment.
(i) 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 necessary information
to support implementation of the system safety program.
(j) A description of the process used by the rail transit agency to
perform accident notification, investigation and reporting, including:
(1) Notification thresholds for internal and external
organizations;
(2) Accident investigation process and references to procedures;
(3) The process used to develop, implement, and track corrective
actions that address investigation findings;
(4) Reporting to internal and external organizations; and
(5) Coordination with the oversight agency.
(k) 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:
(1) Meetings with external agencies;
(2) Emergency planning responsibilities and requirements;
(3) Process used to evaluate emergency preparedness, such as annual
emergency field exercises;
(4) After action reports and implementation of findings;
(5) Revision and distribution of emergency response procedures;
(6) Familiarization training for public safety organizations; and
(7) Employee training.
(l) 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:
(1) Identification of departments and functions subject to review;
(2) Responsibility for scheduling reviews;
(3) Process for conducting reviews, including the development of
checklists and procedures and the issuing of findings;
(4) Review of reporting requirements;
(5) Tracking the status of implemented recommendations; and
(6) Coordination with the oversight agency.
(m) A description of the process used by the rail transit agency to
develop, maintain, and ensure compliance with rules and procedures
having a safety impact, including:
[[Page 22581]]
(1) Identification of operating and maintenance rules and
procedures subject to review;
(2) Techniques used to assess the implementation of operating and
maintenance rules and procedures by employees, such as performance
testing;
(3) Techniques used to assess the effectiveness of supervision
relating to the implementation of operating and maintenance rules; and
(4) Process for documenting results and incorporating them into the
hazard management program.
(n) A description of the process used for facilities and equipment
safety inspections, including:
(1) Identification of the facilities and equipment subject to
regular safety-related inspection and testing;
(2) Techniques used to conduct inspections and testing;
(3) Inspection schedules and procedures; and
(4) Description of how results are entered into the hazard
management process.
(o) 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.
(p) A description of the training and certification program for
employees and contractors, including:
(1) Categories of safety-related work requiring training and
certification;
(2) A description of the training and certification program for
employees and contractors in safety-related positions;
(3) Process used to maintain and access employee and contractor
training records; and
(4) Process used to assess compliance with training and
certification requirements.
(q) A description of the configuration management control process,
including:
(1) The authority to make configuration changes;
(2) Process for making changes; and
(3) Assurances necessary for formally notifying all involved
departments.
(r) A description of the safety program for employees and
contractors that incorporates the applicable local, state, and federal
requirements, including:
(1) Safety requirements that employees and contractors must follow
when working on, or in close proximity to, rail transit agency
property; and
(2) Processes for ensuring the employees and contractors know and
follow the requirements.
(s) A description of the hazardous materials program, including the
process used to ensure knowledge of and compliance with program
requirements.
(t) A description of the drug and alcohol program and the process
used to ensure knowledge of and compliance with program requirements.
(u) A description of the measures, controls, and assurances in
place to ensure that safety principles, requirements and
representatives are included in the rail transit agency's procurement
process.
Sec. 659.21 System security plan: general requirements.
(a) The oversight agency shall require the rail transit agency to
implement a system security plan that, at a minimum, 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 oversight agency may prohibit a rail transit agency from
publicly disclosing the system security plan.
(c) After approving the system security plan, the oversight agency
shall issue a formal letter of approval, including the checklist used
to conduct the review, to the rail transit agency.
Sec. 659.23 System security plan: contents.
The system security plan must, at a minimum address the following:
(a) Identify the policies, goals, and objectives for the security
program endorsed by the agency's chief executive.
(b) Document the rail transit agency's process for managing threats
and vulnerabilities during operations, and for major projects,
extensions, new vehicles and equipment, including integration with the
safety certification process;
(c) Identify controls in place that address the personal security
of passengers and employees;
(d) 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
(e) Document the rail transit agency's process for making its
system security plan and accompanying procedures available to the
oversight agency for review and approval.
Sec. 659.25 Annual review of system safety program plan and system
security plan.
(a) The oversight agency shall require the rail transit agency to
conduct an annual review of its system safety program plan and system
security plan.
(b) 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. After the plan is approved, the oversight agency
must issue a formal letter of approval to the rail transit agency.
(c) 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, consistent with requirements specified in Sec.
659.23(e) of this part. After the plan is approved, the oversight
agency shall issue a formal letter of approval to the rail transit
agency.
Sec. 659.27 Internal safety and security reviews.
(a) The oversight agency shall require the rail transit agency to
develop and document a process for the performance of on-going internal
safety and security reviews in its system safety program plan.
(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; 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.
(c) The rail transit agency must notify the oversight agency at
least thirty (30) days before the conduct of scheduled internal safety
and security reviews.
(d) The rail transit agency shall submit to the oversight agency
any checklists or procedures it will use during the safety portion of
its review.
(e) The rail transit agency shall make available to the oversight
agency any checklists or procedures subject to the security portion of
its review, consistent with Sec. 659.23(e).
(f) The oversight agency shall require the rail transit agency to
annually submit a report documenting internal safety and security
review activities and the status of subsequent findings and corrective
actions. The security part of this report must be made available for
oversight agency review, consistent with Sec. 659.23(e).
(g) The annual report must be accompanied by a formal letter of
certification signed by the rail transit agency's chief executive,
indicating that the rail transit agency is in compliance
[[Page 22582]]
with its system safety program plan and system security plan.
(h) If the rail transit agency determines that findings from its
internal safety and security reviews indicate that the rail transit
agency is not in compliance with its system safety program plan or
system security plan, the chief executive must identify the activities
the rail transit agency will take to achieve compliance.
(i) The oversight agency must formally review and approve the
annual report.
Sec. 659.29 Oversight agency safety and security reviews.
At least every three (3) years, beginning 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.
Alternatively, the on-site review may be conducted in an on-going
manner over the three year timeframe. At the conclusion of the review
cycle, the oversight agency must prepare and issue a report containing
findings and recommendations resulting from that review, which, at a
minimum, must include an analysis of the effectiveness of the system
safety program plan and the security plan and a determination of
whether either should be updated.
Sec. 659.31 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 hazards during its operation, including any
hazards resulting from 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 through resolution the
identified hazard(s);
(5) Define minimum thresholds for the notification and reporting of
hazard(s) to oversight agencies; 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. 659.33 Accident notification.
(a) The oversight agency must require the rail transit agency to
notify the oversight agency within two (2) hours of any incident
involving a rail transit vehicle or taking place on rail transit-
controlled property where one or more of the following occurs:
(1) A fatality at the scene; or where an individual is confirmed
dead within thirty (30) days of a rail transit-related incident;
(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 and non-transit
property that equals or exceeds $25,000;
(4) An evacuation due to life safety reasons;
(5) A collision at a grade crossing;
(6) A main-line derailment;
(7) A collision with an individual on a rail right of way; or
(8) A collision between a rail transit vehicle and a second rail
transit vehicle, or a rail transit non-revenue vehicle.
(b) The oversight agency shall 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 also notify the Federal Railroad
Administration.
(c) The oversight agency shall identify in its program standard the
method of notification and the information to be provided by the rail
transit agency
Sec. 659.35 Investigations.
(a) The oversight agency must investigate, or cause to be
investigated, at a minimum, any incident involving a rail transit
vehicle or taking place on rail transit-controlled property meeting the
notification thresholds identified in Sec. 659.33(a).
(b) The oversight agency must use its own investigation procedures
or those that have been formally adopted from the rail transit agency
and that have been submitted to FTA.
(c) In the event the oversight agency authorizes 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
and contributing factors, and a corrective action plan.
(e) A final investigation report must be formally adopted by the
oversight agency for each accident investigation.
(1) If the oversight agency has conducted the investigation, it
must formally transmit its final investigation report to the rail
transit agency.
(2) If the oversight agency has authorized an entity other than
itself (including the rail transit agency) to conduct the accident
investigation on its behalf, the oversight agency must review and
formally adopt the final investigation report.
(3) If the oversight agency does not concur with the findings of
the rail transit agency investigation report, it must either:
(i) Conduct its own investigation according to paragraphs (b), (d)
and (e)(1) of this section; or
(ii) Formally transmit its dissent to the findings of the accident
investigation, report its dissent to the rail transit agency, and
negotiate with the rail transit agency until a resolution on the
findings is reached.
(f) 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.
Sec. 659.37 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 and
contributing 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, an implementation schedule, and the
individual or department responsible for the implementation.
(c) The corrective action plan must be reviewed and formally
approved by the oversight agency.
(d) The oversight agency must establish a process to resolve
disputes between itself and the rail transit agency resulting from the
development or enforcement of a corrective action plan.
(e) The oversight agency must identify the process by which
findings from an NTSB accident investigation will be evaluated to
determine whether or not a corrective action plan should be developed
by either the oversight agency or rail transit agency to address NTSB
findings.
(f) The rail transit agency must provide the oversight agency:
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(1) Verification that the corrective action(s) has been implemented
as described 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 requested by the oversight agency, describing
the status of each corrective action(s) not completely implemented, as
described in the corrective action plan.
(g) The oversight agency must monitor and track the implementation
of each approved corrective action plan.
Sec. 659.39 Oversight agency reporting to the Federal Transit
Administration.
(a) Initial submission. Each designated oversight agency with a
rail fixed guideway system that is in passenger operations as of April
29, 2005 or will begin passenger operations by May 1, 2006, must make
its initial submission to FTA by May 1, 2006. In states with rail fixed
guideway systems initiating passenger operations after May 1, 2006, the
designated oversight agency must make its initial submission within the
time frame specified by the state in its designation submission, but
not later than at least sixty (60) days prior to initiation of
passenger operations. Any time a state changes its designated oversight
agency to carry out the requirements identified in this part, the new
oversight agency must make a new initial submission to FTA within
thirty (30) days of the designation.
(b) An 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 twelve months, including a description of
the causal factors of investigated accidents, status of corrective
actions, updates and modifications to rail transit agency program
documentation, and the level of effort used by the oversight agency to
carry out its oversight activities.
(2) A report documenting and tracking findings from three-year
safety review activities, and whether a three-year safety review has
been completed since the last annual report was submitted.
(3) Program standard and supporting procedures that have changed
during the preceding year.
(4) Certification that any changes or modifications to the rail
transit agency system safety program plan or system security plan have
been reviewed and approved by the oversight agency.
(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 submitted electronically using a reporting system
specified by FTA.
Sec. 659.41 Conflict of interest.
The oversight agency shall prohibit a party or entity from
providing services to both the oversight agency and rail transit agency
when there is a conflict of interest, as defined by the state.
Sec. 659.43 Certification of compliance.
(a) Annually, the oversight agency must certify to the FTA that it
has complied with the requirements of this part.
(b) The oversight agency must submit each certification
electronically to FTA using a 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: April 4, 2005.
Jennifer L. Dorn,
Administrator.
[FR Doc. 05-8567 Filed 4-28-05; 8:45 am]
BILLING CODE 4910-57-P