[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)]
[Rules and Regulations]
[Pages 67034-67048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31159]
[[Page 67033]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Federal Transit Administration
_______________________________________________________________________
49 CFR Part 659
Rail Fixed Guideway Systems; State Safety Oversight; Final Rule
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 /
Rules and Regulations
[[Page 67034]]
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 659
[Docket No. 92-D]
RIN 2132-AA39
Rail Fixed Guideway Systems; State Safety Oversight
AGENCY: Federal Transit Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: As required by the Intermodal Surface Transportation
Efficiency Act of 1991, the Federal Transit Administration (FTA) issues
a rule requiring States to oversee the safety of rail fixed guideway
systems not regulated by the Federal Railroad Administration (FRA).
This document accordingly sets forth FTA's State safety oversight
program, which is intended to improve the safety of rail fixed guideway
systems.
EFFECTIVE DATE: This regulation is effective January 26, 1996. The
incorporation by reference of certain documents in the regulation is
approved by the Director of the Federal Register as of January 26,
1996.
FOR FURTHER INFORMATION CONTACT: For program issues: Judy Meade or Roy
Field, Office of Safety and Security, Federal Transit Administration,
(202) 366-2896 (telephone) or (202) 366-3765 (fax). For legal issues:
Nancy Zaczek, Office of Chief Counsel, Federal Transit Administration,
(202) 366-4011 or (202) 366-3809.
SUPPLEMENTARY INFORMATION:
This preamble is organized as follows:
I. Background
A. 49 U.S.C. Sec. 5330
B. Summary of the final rule
C. Overview of the comments
II. Discussion of the Comments
A. Rail Fixed Guideway System
B. System Safety Program Standard
C. System Safety Program Plan--the six factors
D. Planning, design, and construction
E. Accountability factor
F. EPA and OSHA requirements
G. Security
H. Biennial safety reviews
I. Safety audits
J. Accident
K. Hazardous condition
L. Investigations
M. Confidentiality of oversight agency investigation reports
N. Certified Transit Safety Professional
III. Section-by-Section Analysis
IV. Economic Analysis
V. Regulatory Process Matters
I. Background
The Intermodal Surface Transportation Efficiency Act of 1991 (Pub.
L. 102-240), enacted into law on December 18, 1991, added section 28 to
the Federal Transit Act (recently codified at 49 U.S.C. 5330 (1994)),
which requires the Federal Transit Administration to issue regulations
creating a State oversight program. On June 25, 1992, FTA issued an
Advance Notice of Proposed Rulemaking (ANPRM) soliciting public comment
on a range of issues to be addressed in drafting a Notice of Proposed
Rulemaking (NPRM). 57 FR 28572. The agency held hearings on the ANPRM
in Los Angeles, California; Portland, Oregon; and Washington, DC.
Thirty-five entities either submitted comments to the docket or
testified at one of the three hearings, including fifteen transit
authorities, three utility commissions, eight States, one engineering
firm, two transit associations, one labor union, one Federal agency,
one transit supplier, two representatives from the people mover
industry, and one transportation consultant.
On December 9, 1993, FTA published its NPRM (58 FR 64855) and today
publishes its final rule, which requires States to oversee the safety
of rail fixed guideway systems.
A. 49 U.S.C. 5330
In general, section 5330 applies only to those States in which a
rail fixed guideway system operates that is not regulated by the
Federal Railroad Administration, and requires any such State to
designate a State oversight agency to be responsible for overseeing the
rail fixed guideway system's safety practices. FTA is required to issue
a rule implementing the program and may withhold Federal funds if a
State fails to implement the rule.
More specifically, the statute describes the responsibilities of
the State and the agency the State designates to provide oversight,
which in most instances will be an agency of the State because most
rail fixed guideway systems operate in only one State. When a rail
fixed guideway system operates in more than one State, however, the
statute permits the affected States to designate any entity, other than
the transit agency itself, to oversee that rail fixed guideway system.
Whether the oversight agency is a State agency or some other
entity, it must require each affected transit agency to create a system
safety program plan, which the oversight agency must review and
approve. The oversight agency must also investigate accidents and
hazardous conditions. Once a hazardous condition has been discovered,
the oversight agency must require the transit agency to correct or
eliminate it.-
If a State has not met these requirements or has not made adequate
efforts to comply with them, the Secretary may withhold up to five
percent of a fiscal year's apportionment under FTA's formula program
for urbanized areas (formerly section 9) attributable to the State or
an affected urbanized area in the State.
B. Summary of the Final Rule
The rule delineates the responsibilities of the State, the
oversight agency, the transit agency, and the FTA.
The State
Under the rule, the primary responsibility of the State is to
designate an entity or entities to oversee the safety of a rail fixed
guideway system. When the rail fixed guideway system operates only
within a single State, that entity or entities must be an agency of the
State; when it operates in more than one State, the affected States may
designate a single entity to oversee that system. In neither case may
the State designate the transit agency as the oversight agency.
To ensure the oversight agency's candid assessment of the probable
cause of a particular accident or unacceptable hazardous condition, the
rule allows the State to enact legislation prohibiting the disclosure
of oversight agency investigation reports.
The Oversight Agency
The rule directs the oversight agency, or an entity acting on its
behalf, to develop a system safety program standard, a document that
establishes the relationship between the oversight and transit agencies
and specifies the procedures that the transit agency must follow. The
system safety program standard must, at a minimum, comply with the
American Public Transit Association's ``Manual for the Development of
Rail Transit System Safety Program Plans'' (``APTA Guidelines''), a
manual widely used throughout the transit industry and available from
the American Public Transit Association (APTA), 1201 New York Avenue,
N.W., Washington, D.C. 20005-3917, or the Federal Transit
Administration, Office of Safety and Security, 400 7th Street, S.W.,
Washington, D.C. 20590. The APTA Guidelines assist in developing safety
practices to reduce the likelihood of unintentional events that may
lead to death, injury, or property damage. In
[[Page 67035]]
addition, the system safety program standard must include specific
provisions addressing ``security'' matters, intentional wrongful or
criminal acts, such as muggings, rapes, murders, assaults, or terrorist
activities. To develop this portion of the system safety program plan,
we suggest that the oversight agency use FTA's ``Transit Security
Procedures Guide'' and ``Transit System Security Program Planning
Guide,'' available from the FTA at the address above.
The oversight agency must require the transit agency to develop a
system safety program plan that complies with the oversight agency's
system safety program standard. By January 1, 1997, the oversight
agency must review and approve, in writing, the transit agency's system
safety program plan; however, the ``security'' provisions of the system
safety program plan must be approved initially by the oversight agency
by January 1, 1998. After the initial approvals, the oversight agency
must review, as necessary, the transit agency's system safety program
plan and determine whether it should be updated. All oversight agency
approvals must be in writing.
The rule allows the oversight agency to prohibit the transit agency
from publicly releasing the ``security'' provisions in the system
safety program plan.
The oversight agency must require the transit agency to conduct
safety audits according to the Internal Safety Audit Process detailed
in checklist number 9 of the APTA Guidelines. Once a year the transit
agency must compile and submit an audit report to the oversight agency
or an entity acting on its behalf for review.
Aside from reviewing the transit agency's safety audit reports, the
oversight agency must conduct on-site safety reviews every three years.
In a safety review, the oversight agency must assess whether the
transit agency's actual safety practices and procedures comply with its
system safety program plan. Once this review is completed, the
oversight agency must prepare a report containing its findings and
recommendations, an analysis of the efficacy of the transit agency's
system safety program plan, and a determination of whether the system
safety program plan should be updated.
The oversight agency must require the transit agency to report the
occurrence of accidents and unacceptable hazardous conditions within a
period of time specified by the oversight agency. The oversight agency
must investigate such reports in accordance with procedures it has
established. The oversight agency may conduct its own investigation,
use a contractor to conduct an investigation, or rely on the
investigation conducted by the transit agency or the National
Transportation Safety Board (NTSB).
After the oversight agency has investigated an accident or
unacceptable hazardous condition, it must require the transit agency to
minimize, control, correct, or eliminate it, in accordance with a
corrective action plan drafted by the transit agency and approved by
the oversight agency.
The oversight agency must submit three kinds of reports to FTA: an
initial submission, an annual submission, and a periodic submission. In
the initial submission, the oversight agency lists the names and
addresses of the rail fixed guideway systems it oversees. This report
must be updated only when that information changes. In the annual
submissions, the oversight agency must submit to FTA a publicly
available report summarizing its oversight activities for the past
year. Periodically, an oversight agency must submit to FTA status
reports of accidents, hazardous conditions, and corrective action
plans. The oversight agency must submit these reports only if FTA so
requests.
The Transit Agency
The transit agency must develop a system safety program plan that
complies with the oversight agency's system safety program standard. It
must conduct safety audits that comply with the Internal Safety Audit
Process, APTA Guidelines, checklist number 9, and draft and submit to
the oversight agency a report summarizing the results of the safety
audit. The transit agency must classify hazardous conditions according
to the APTA Guidelines' Hazard Resolution Matrix. The transit agency
must report, within the timeframe specified by the oversight agency,
any accident or unacceptable hazardous condition that has occurred on
the rail fixed guideway system. The transit agency may, if the
oversight agency so chooses, conduct investigations on behalf of the
oversight agency. Once an investigation has been completed, the transit
agency must obtain the oversight agency's approval of a corrective
action plan and then implement the plan so as to minimize, control,
correct, or eliminate the particular unacceptable hazardous condition
or condition that has caused an accident.
The Federal Transit Administration
The FTA assesses whether the State has complied with the rule or
has made adequate efforts to comply with it. If the FTA determines that
the State is not in compliance or has not made adequate efforts to
comply, it may withhold up to five percent of the amount apportioned
for use in the State or affected urbanized areas under FTA's formula
program for urbanized areas (formerly section 9). Also, FTA receives
reports from the oversight agency.
C. Overview of the Comments
The FTA received 60 comments in response to the NPRM. FTA
considered all comments filed in a timely manner as well as all
statements and material presented at the public hearings on the rule.
The breakdown among commenter categories is as follows:
Transit Agencies.....................................................27
State DOTs............................................................9
Public Utilities......................................................6
Cities................................................................1
Federal Agencies......................................................2
Independent Consultants...............................................8
Trade Associations....................................................2
Safety Societies/Associations.........................................5
In Section II below, we discuss in detail the public comments
addressing issues raised in the NPRM. One such issue, how the term
``rail fixed guideway system'' should be defined, affects the scope of
the rule. Another key issue, how the system safety program standard
should be developed and what it should include, will directly affect
the relationship between the oversight and transit agencies. Most
important, we examine whether the oversight agency should use the APTA
Guidelines or Military Standard 882B or 882C (MIL-STD 882B or 882C) to
develop its system safety program standard. We also examine whether the
system safety program standard should cover the planning, design, and
construction phases of a rail fixed guideway system's life cycle; EPA
and OSHA-type matters; ``security''; and other issues.
Also, we discuss the oversight agency's role in investigating
accidents and unacceptable hazardous conditions. A related issue
concerns whether investigation reports should be kept confidential.
For additional discussion on individual issues, see also the
Section-By-Section Analysis below in Section III.
II. Discussion of the Comments
A. Rail Fixed Guideway System
The first issue is the definition of ``rail fixed guideway
system.'' Statutes give us limited guidance in this regard; section
5330, the authority for this rulemaking, states that it applies ``only
to States that have rail fixed guideway mass transportation systems not
subject
[[Page 67036]]
to regulation by the Federal Railroad Administration.'' Another
provision, 49 U.S.C. Sec. 5302, defines ``mass transportation'' as
``transportation by a conveyance that provides regular and continuing
general or special transportation to the public * * *.'' Finally, 49
U.S.C. Sec. 20102(1), which defines railroads subject to regulation by
the FRA, specifically excludes ``rapid transit operations within an
urban area that are not connected to the general railroad system of
transportation.'' Of mass transportation systems, generally, only
commuter railroads are regulated by the FRA. Therefore, we asked in
both the ANPRM and the NPRM whether we should adopt a narrow definition
and include only light and heavy rail systems or a broad definition and
include other rail systems, such as monorails, inclined planes, trolley
systems, and funiculars, as well.
Many commenters to the ANPRM did not address this issue. Those that
responded directed their comments to specific issues; for instance, six
commenters discussed including people movers, while only two commenters
proposed a definition for FTA's consideration. In the NPRM, FTA
proposed to define ``rail fixed guideway system'' as
Any public transportation facility not regulated by the Federal
Railroad Administration, which occupies a separate right-of-way
exclusively for public transportation or uses a steel-wheeled
catenary or other rail system sharing a right-of-way with other
forms of transportation and, which is included in the calculation of
fixed guideway route miles under section 9 of the FT Act.
As we explained in the preamble to the NPRM, this definition would
cover light and heavy rail, cable cars, trolleys, people movers, and
inclined planes so long as their mileage is included in the calculation
of fixed guideway route miles under section 9 of the FT Act. We further
noted that the Morgantown People Mover, which is not used in the
calculation of route miles under the section 9 formula program, would
not be covered by the proposed rule, while the Detroit People Mover,
which is used in the calculation of the section 9 formula would be
covered. We further noted that the definition also would not cover
rubber-wheeled trolley buses that use a catenary system, as they are
subject to motor vehicle regulations.
Many of the commenters to the NPRM urged FTA to adopt the narrow
definition, with most of them suggesting that the definition be limited
to light and heavy rail systems only. In support of their contention,
some of these commenters noted that in the past, NTSB had recommended
that FTA oversee the safety of rapid rail transit systems only,
although these commenters stated that light rail systems should be
covered by the rule as well. Concerning people movers, inclined planes,
amusement rides, funiculars, historical trolleys, cable cars, and other
rail transit systems, these commenters opposed their inclusion, opining
that they do not present the same level of risk to public safety as
posed by heavy and light rail systems.
NTSB also commented on this issue by stating that although it
had no accident investigation experience with people movers or
incline planes that would provide a basis to determine if these
systems should be covered by the FTA's regulations, the Board
believe[s] that the safety of any system that regularly transports
people should be monitored by an appropriate State or local agency.
Limiting the definition of a rail fixed guideway system to those
systems used by an urbanized area in the calculation of fixed
guideway route miles under Section 9 of the Federal Transit Act
would apparently exclude some of these systems from the proposed
regulation. Further, it is possible that an urbanized area could not
count in the statutory formula to determine Section 9 Federal funds
the rail route miles of a particular system to avoid having the
system covered by the proposed oversight regulation. In short, the
Safety Board questions the need for the Section 9 limitation to the
definition.
FTA Response. Although most commenters recommended that we cover
only light and heavy rail systems, we agree with the NTSB that ``any
system that regularly transports people should be monitored by an
appropriate State or local agency.'' Hence, the rule covers inclined
planes, monorails, trolleys, automated guideways, and funiculars along
with light, rapid, and heavy rail systems. We did, however, change the
definition to clarify that guided busways are not covered.
We also made another change in light of NTSB's assertions that the
proposed definition may exclude some systems that are not used to
calculate fixed guideway route miles under FTA's formula grant program
for urbanized areas. We do not believe this would be the case because
FTA's grant program is based, in part, on the amount of ``fixed
guideway route miles'' within an urbanized area. It is therefore in the
urbanized area's interest to include as many systems as possible.
Moreover, in most instances, a system that receives Federal funding
under FTA's formula grant program for urbanized areas would have its
mileage included in the calculation. The opposite, however, is not
true; there are systems whose mileage is used in the calculation that
do not receive funding under FTA's formula grant program for urbanized
areas. That is why we proposed covering those systems that are used in
the calculation instead of just certain recipients of FTA funding; it
is actually a broader category. Nevertheless, we have added a provision
to cover any system that receives funding under FTA's formula grant
program for urbanized areas or is used in the calculation of ``fixed
guideway route miles.'' This definition should cover most rail mass
transit systems not regulated by the FTA.
B. System Safety Program Standard
Section 5330 requires FTA to issue regulations that direct the
State oversight agency to develop ``a safety program plan for each
[rail] fixed guideway mass transportation system in the State.'' In the
NPRM, we proposed to require the oversight agency to adopt a system
safety program standard, which a transit agency would then use to
develop its system safety program plan, the document used by the
transit agency to ensure that it uses proper safety practices and
procedures.
The NPRM further proposed that the oversight agency's ``system
safety program standard'' comply, at a minimum, with the American
Public Transit Association's ``Manual for the Development of Rail
Transit System Safety Program Plans,'' (``APTA Guidelines''). In the
preamble to the NPRM, we noted that we had considered adopting Military
Standard 882B (MIL-STD 882B), which has been subsequently superseded by
MIL-STD 882C, but found it unnecessary because APTA had developed its
Guidelines by adapting MIL-STD 882B to the transit industry.
While most commenters favored the use of the APTA Guidelines, one
commenter strongly favored the use of MIL-STD 882B or 882C to develop
the system safety program standard. This commenter noted that:
[T]he discussion of the Proposed Rule indicates that the APTA
requirement is equivalent to MIL-STD 882B, and that the APTA
standard can therefore be used in place of the MIL-STD. It should be
noted that the APTA standard is not equivalent to the military
standard. There are significant and important philosophical
differences between the two documents. The most important of the
differences is that MIL-STD 882 specifies that system safety be
started very early in the project, that it must be involved in the
design of the system, that a specific order of precedence must be
followed to increase safety, and that risk assessments must be based
upon probability and severity. The APTA standard emphasizes the use
of system safety for operational systems after they have been
completed and put into service,
[[Page 67037]]
indicates that system safety is mostly concerned with operations and
procedures, and implies that safety can be `audited' into a system.
While the APTA Manual does mention that system safety is needed
during the design phases, the emphasis is clearly on later phases *
* * . Another potential concern with the APTA Manual is that it
describes the audit process in terms of determining whether or not
the transit agency is following its system safety program, but is
silent on the issue of determining whether or not that program can
be expected to accomplish its goals. While this is appropriate for
an organization such as APTA, it may not be appropriate for an
Oversight Agency. It may be important for the Oversight Agency to
review the Transit Agencies' plans with an eye toward trying to
determine whether or not the plan is likely to result in an
effective system safety program * * * .
This commenter also noted that MIL-STD 882C incorporates changes
concerning ``Software Safety.''
FTA Response. This commenter has certainly made a convincing case
for the adoption of MIL-STD 882B or 882C, and we emphasize that,
although we have adopted the proposal as published in the NPRM, we have
not precluded the use of either of those Military Standards. Instead,
we have adopted the APTA Guidelines as a minimum standard the oversight
agency must meet or exceed; because the APTA Guidelines were derived
from MIL-STD 882B, an oversight agency that bases its system safety
program standard on either MIL-STD 882B or 882C should meet or exceed
the requirements of the APTA Guidelines. Moreover, by adopting the APTA
Guidelines as a minimum standard, we accomplish two objectives:
establishing a nation-wide baseline standard and giving a State more
flexibility and control in developing its own program.
We do, in fact, urge the oversight agency to assess the APTA
Guidelines in relation to MIL-STD 882B or 882C and decide which one
best addresses its needs. We believe that an oversight agency that uses
either MIL-STD 882B or 882C as a basis for its system safety program
standard is well served, and we urge an oversight agency to at least
consider those Military Standards in developing its own oversight
program.
Although we have not mandated the use of MIL-STD 882B or 882C, we
have addressed one of the concerns of this commenter, by adding a
provision in the rule to require the oversight agency to determine the
efficacy of the transit agency's system safety program plan and require
the transit agency to update it, if necessary.
This commenter also commented that the MIL-STD 882C's section on
``Software Safety'' is ``of critical importance to modern transit
systems''; we recommend that both the oversight agency and the transit
agency assess whether that section meets the safety needs of the ``rail
fixed guideway system.''
C. System Safety Program Plan--the Six Factors.
As mentioned above, under the NPRM the transit agency was to
develop a system safety program plan that complied with the oversight
agency's system safety program standard. In the preamble to the NPRM,
we suggested that the system safety program plan should: (1) be
endorsed by top management; (2) establish the safety goals and
objectives of the transit agency; (3) identify safety issues; (4)
require cooperation within the transit agency to address the identified
safety issues; (5) recognize that achieving safety goals and objectives
may require the involvement of entities other than the transit agency;
and (6) provide a schedule for the implementation and revision of the
system safety program plan. We then asked for comment on whether we
should require these six factors in the final rule.
Only seven commenters responded to this issue, and none of them
opposed the general concept of the six factors. Several of the
commenters noted, however, that all six factors are included in the
APTA Guidelines, making them unnecessary if FTA incorporates the APTA
Guidelines into the final rule.-
-FTA Response. Since the six factors are included in the APTA
Guidelines, which we have incorporated by reference into the final
rule, the oversight agency must require the transit agency to address
all six factors in its system safety program plan.
D. Planning, Design, and Construction.
In the preamble to the NPRM, we noted that section 5330 may be read
To apply only to the operation of rail fixed guideway systems,
which would lead to the conclusion that the NPRM covers only those
rail fixed guideway systems already in existence, or other systems
only when they commence operations. On the other hand, if we were to
interpret section [5330] to apply during the planning, design, and
construction phases of a system, we would then have to decide when
the State would be required to comply with this proposed rule. This
would be especially difficult for those States where systems are in
the planning stage, which can be a lengthy process, and it would be
difficult to specify at what point the oversight agency would have
to be established.
Of the commenters that responded to this issue, only a few favored
covering the pre-operational phases of the rail fixed guideway system's
life cycle. One of these commenters stated that ``[t]o ensure that the
design of facilities and systems results in optimal safety, the system
safety approach has been shown to be highly effective and cost
efficient.''
The vast majority of the commenters were against covering the
planning, design, and construction phases in this rule, stating in
effect, that other mechanisms, i.e., FTA's Program Management Oversight
(PMO) process and the construction contract itself can ensure that
safety is planned, designed, and constructed into new rail fixed
guideway systems.
FTA Response. Although we agree that a system safety program plan
should cover the planning, design, and construction of a ``rail fixed
guideway system,'' the language of section 5330 leads us to conclude
that it covers only operating systems or systems about to commence
operations. Section 5330 directs a State to establish and carry out a
``safety program plan for each [rail] fixed guideway mass
transportation system in the State,'' never mentioning the planning,
design, and construction phases of a system's life cycle. Moreover,
because of the lengthy planning, design, and construction phases of a
system's life cycle, we believe that it is impractical, especially for
a State planning its first ``rail fixed guideway system,'' to require
that a State create a bureaucracy years before a single passenger is
served, when there are other mechanisms available to ensure that safety
is designed, planned, and constructed into a new ``rail fixed guideway
system.'' This does not mean, however, that a State is precluded from
creating an oversight agency that oversees the planning, design, and
construction of a ``rail fixed guideway system.'' On the contrary, we
encourage the States to do so, although we do not, under this rule,
require it. Also, we encourage the oversight agencies to work with PMOs
to ensure that safety is designed, planned, and constructed into new
``rail fixed guideway systems.''
E. Accountability Factor.
While drafting the NPRM, we were concerned that the development of
a State Safety Oversight Program would not be complete without some
mechanism to ensure transit agencies' commitment to safety. To
``institutionalize'' this commitment and to meet the requirements of
section 5330, we developed the ``accountability factor,'' in which the
oversight agency would require a transit agency to
[[Page 67038]]
identify tasks critical to safety and the persons responsible for
performing those tasks. This concept was derived from section 207 of
MIL-STD 882B, which concerns the ``identification of safety-critical
equipment and procedures.'' The ``accountability factor'' was intended
to help the transit agency identify and correct problems.
Most of the commenters on this issue opposed the inclusion of the
``accountability factor'' in the rule because, in their opinion, it
would not achieve its intended purpose of making systems safer. For
instance, one commenter stated such a requirement would allow the
oversight agency not just to oversee but to micromanage the transit
agency; another claimed that it would become a ``paperwork'' exercise
and actually hinder the development of safety practices and procedures.
Yet another commenter stated that it would be used to ``fix'' blame.
One commenter argued that the ``accountability factor'' was a
``misapplication'' of section 207 of MIL-STD 882B, which, according to
this commenter, was developed to verify compliance with safety
equipment and procedures, an activity distinct from system safety
program activities. Last, some commenters indicated that the
``accountability factor'' was not necessary under the rule because a
well-drafted system safety program plan incorporates accountability
into it.
Although the NTSB favored the inclusion of the ``accountability
factor'' in the final rule, it did not elaborate on its reasoning.
FTA Response. The final rule does not include the ``accountability
factor'' because on balance, we have concluded that the oversight
agency is best suited to meet the directives of section 5330(c)(1) to
``establish[ ] * * * lines of authority [and] levels of responsibility
and accountability * * *'' for the rail fixed guideway system. We note
that the APTA Guidelines checklist numbers 1 through 5 stress the
development of a concept similar to the proposed ``accountability
factor.''
F. EPA and OSHA Requirements.
We asked whether the system safety program plan should address
matters covered by the Occupational Safety and Health Administration
(OSHA) and the Environmental Protection Agency (EPA). Four argued that
it should; three were opposed. Those in favor supported a
``comprehensive approach'' to safety in which various safety issues or
``disciplines'' are integrated for a total prevention effort. Those in
opposition were concerned about creating overlapping jurisdiction
between the oversight agency and the State agency with authority to
enforce the EPA and OSHA laws and regulations.
FTA Response. By adopting the APTA Guidelines, which address OSHA
and EPA matters in System Safety Checklist numbers 19 and 20,
respectively, we have required that these matters be included in the
system safety program plan. Although this allows the possibility of
jurisdictional conflicts among State agencies, the benefits of the
oversight agency's adopting a total approach to safety outweigh this
possibility. Moreover, a State can plan to reduce or eliminate any
duplicative jurisdiction between the oversight agency and any other
State agency with jurisdiction over EPA and OSHA matters.-
G. Security.
In the preamble to the NPRM, we asked whether the system safety
program plan should address security matters, and if so, what
specifically should be included. Many commenters responded to this
question, most negatively; some contended that security matters should
be handled by law enforcement personnel and not by transit safety
professionals, others opined that requiring the system safety program
plan to address security matters is outside the scope of section 5330,
and others stated that whether transit security matters should be
included in the system safety program plan should be decided by State
and local transit officials and not mandated by the Federal government.
More particularly, one commenter noted that ``security is a
separate issue which requires separate treatment, separate techniques,
separate concerns, and separate disciplines.'' This commenter
continued:
[A]lthough, many times the public may perceive their safety as
being `freedom from assault or attack from other individuals',
normally professionals in the industry define safety in association
with unintentional events or conditions (accidents), whereas,
security is defined as being associated with intentional acts
(usually illegal acts). The causes and the control measures for
these two situations (safety and security) are entirely different *
* *. One good reason for keeping these separate is the different
type of management required. Typically, effective management of
security requires law enforcement type management philosophies,
whereas effective management of safety requires entirely different
(and sometimes opposite) kinds of thinking. Management of these two
functions must be separated, because of the different skills,
philosophies, management styles, and kinds of managers required.
Other commenters noted another important difference between safety
procedures and security measures: Safety procedures, policies, and
processes can be made public and still be effective, whereas security
measures, to be effective, must be kept confidential. Thus, these
commenters reasoned, security measures should not be included in a
publicly available document, such as a system safety program plan.
The commenters in favor of requiring the system safety program plan
to address security matters focused on the similarities between
security measures and safety issues. Most notably, these commenters
stated, safety and security procedures are both forms of risk
management; ``[s]afety is the management of the risk to persons and
property from accidental or negligent loss * * [while] security is the
management of the risk to persons and property from criminal acts.''
Last, some commenters contended that emergency planning and
response procedures were the same for both safety and security events.
Four commenters recommended that FTA include security only when it
relates to emergency planning and response.
FTA Response. Because we agree with the commenter who noted that
safety and security are both forms of risk management and because of
recent terrorist acts, we have decided to require the inclusion of
security considerations in the system safety program plan. In response
to another commenter, however, we have added a provision to the rule
that will allow the security portion of the system safety program plan
to be barred from public disclosure.
We disagree, however, with the argument that Congress did not
intend section 5330 to include security. Section 5330(c)(1) states that
``[a] State meets the requirement of this section if the State--
establishes and is carrying out a safety program plan for each [rail]
fixed guideway mass transportation system in the State * * *''
[emphasis added]. According to Webster's Third New International
Dictionary, ``safety'' means ``the condition of being safe; freedom
from exposure to danger, exemption from hurt, injury, or loss,''
whereas ``security'' means ``the quality or state of being secure: as
(a) freedom from danger: safety.'' It seems clear, therefore, that the
meaning of safety encompasses the meaning of security. Moreover,
according to the System Safety Glossary published in 1985, by the
Transportation Safety Institute ``safety'' is defined as ``[a]
reasonable degree of freedom from those conditions that can cause
injury or death to personnel, damage to or loss of equipment or
[[Page 67039]]
property; freedom from danger''; this would certainly cover intentional
acts. Similarly, according to the Transit Security Program Planning
Guide recently published by the FTA, ``security'' means ``freedom from
intentional danger,'' while ``safety'' means ``freedom from danger.''
Therefore, section 5330 can be interpreted, and we do, to require the
inclusion of security in the system safety program plan.
Other commenters indicated that security should not be included in
the system safety program plan because safety and security are as
different from each other as apples from oranges. One transit agency
presented safety and security as two different disciplines requiring
two different approaches and two different kinds of trained personnel.
Thus, this commenter reasoned, the system safety program plan should
not address security matters. In our view, however, safety and security
risks are interrelated, especially from the perspective of transit
passengers. We agree with the commenter who wrote:
[A]lthough the disciplines have been separated in their normal
application, there is a trend for a united knowledge base of safety
with security so that any type of hazard is examined for its
implication as a security type of problem. As with other
disciplines, safety and security requirements may be at odds
requiring careful analysis of the potential hazards and threats
against the transit system and the development of appropriate trade-
off studies. The Transit Safety Professional needs to have security
analyses in the curriculum of study and certification to ensure
awareness of the issues and concerns related to security. In
addition, security systems themselves require safety analyses to
ensure that they are properly covered.
We also disagree with the commenter who recommended that only
emergency response procedures be included in the system safety program
plan. We note that the APTA Guidelines already contain a provision
concerning emergency preparedness. While emergency preparedness is
itself a valuable activity, it does not prevent either intentional or
unintentional acts from occurring. An emergency preparedness plan is
used to develop a response to an event, while the overall system safety
program plan develops procedures to reduce the likelihood of either
intentional or unintentional events from occurring.
H. Biennial Safety Reviews
In the proposed rule, the oversight agency would comprehensively
review, on-site, the rail fixed guideway system's safety practices
every two years. Most commenters objected to this provision. Some
maintained that a review every two years was unnecessary and
burdensome; in support of their contention, they mentioned APTA's Rail
Safety Audit Program, in which auditors employed by APTA review a rail
fixed guideway system's safety practices every three years. They
maintain that a three-year review schedule adequately addresses safety
needs. One commenter indicated that APTA adopted a three-year schedule
to give rail fixed guideway systems time to take corrective and other
recommended actions. Another commenter, a State agency already
overseeing rail fixed guideway systems, stated that it does not
independently conduct on-site reviews, but instead observes the APTA
auditors review a system; this commenter concluded that this approach
works well for it and the rail fixed guideway systems under its
jurisdiction. Some commenters urged us to specifically allow oversight
agencies to use the APTA Rail Safety Audit Program.
Other commenters favored a flexible approach, in which the
oversight and transit agencies schedule reviews appropriate for the
age, size, and complexity of the rail fixed guideway system. One
commenter recommended that we specify the exact requirements of a
safety review.
FTA Response. Agreeing generally with the commenters, we have made
the rule more flexible. For instance, the rule requires the oversight
agency to review the transit agency's safety practices at least every
three years instead of every two, as we had proposed. The oversight
agency may conduct these reviews more frequently if it chooses.
Moreover, the rule expressly allows the oversight agency to use a
contractor to conduct the required review, which allows the oversight
agency to use the APTA Rail Safety Audit Program or any other qualified
contractor to conduct safety reviews.
Although one commenter had urged us to define specifically the
requirements of a safety review, we have declined to do so. Instead,
the oversight agency should determine for itself, based on the age,
size, and complexity of the individual rail fixed guideway system
within its jurisdiction, the exact extent of the review; however, it
must be comprehensive, i.e., cover all matters included in the transit
agency's system safety program plan.
The process used by the California Public Utilities Commission
(CPUC) illustrates how the rule can be flexible. Instead of using its
staff to conduct comprehensive safety reviews, CPUC staff accompany and
observe APTA auditors who perform a comprehensive safety audit. This
system allows CPUC personnel to cover the daily operation and
maintenance activities of the rail fixed guideway system and conduct
in-depth reviews of particular activities on an ``apparent need''
basis. For instance, CPUC's staff conducted in-depth reviews of track
maintenance practices at five different rail fixed guideway systems. In
short, an oversight agency could conduct its own safety reviews,
contract them out completely, or adopt an approach similar to CPUC's,
in which both a comprehensive safety review and an in-depth review of a
particular system component is conducted by another contractor or
oversight agency personnel.
One commenter recommended that the extent and frequency of safety
reviews depends on the particular phase of the rail fixed guideway
system's lifecycle. This commenter recommended that a safety audit be
performed during the preliminary engineering phase to assure properly
defined criteria, during the final design stage to assure that the
criteria has been included in the specifications, during pre-revenue
testing to assure the systems have been properly installed and the
system tested and safety certified, then every two to three years when
the system is operational, and more frequently if there are serious
problems. We agree with this commenter, although we have not adopted
his suggestions formally in the rule. Instead, we strongly urge
oversight agencies to consider these kinds of factors when establishing
a safety review process.
I. Safety Audits
FTA proposed to require the transit agency to conduct a ``safety
audit,'' a ``methodical, ongoing, internal examination of a transit
agency's safety practices to determine whether they comply with the
policies and procedures required under the transit agency's system
safety program plan.'' The results of these safety audits were to be
compiled every six months by the transit agency into a report to the
oversight agency, which would review those reports as part of its
monitoring function required under section 5330.
Nineteen commenters responded to this proposed safety audit
process, with most of them objecting that such audits amount to a
``paperwork exercise'' that could be detrimental to the safe operation
of a rail fixed guideway system. They argued that the ``safety audits''
and the ``biennial reviews'' were redundant and that auditing
continuously was not necessary to
[[Page 67040]]
ensure the safe operation of a rail fixed guideway system. Some of
these commenters recommended that FTA adopt a system of random periodic
checks similar to the APTA review process; others recommended that the
oversight agency set the timeframe for safety audits by the transit
agency. Still others recommended that the frequency of safety audits be
linked to the age, type, and speed of the system, maintaining that
different rail fixed guideway systems have different safety auditing
needs.
FTA Response. FTA had intended the ``safety audit'' process to be
used in addition to the ``Internal Safety Audit Process'' in checklist
number 9 of the APTA Guidelines, which apparently confused the
commenters. To clarify our intent, we have withdrawn the proposed
definition, ``safety audit,'' and now require the oversight agency to
develop a process that complies with APTA's ``Internal Safety Audit
Process.'' Although we make this change, we nevertheless encourage
transit and oversight agencies to view safety and the safety auditing
process as a routine, daily matter. As noted in the APTA Guidelines,
``[t]he Internal Safety Audit Process * * * requires constant attention
and activity.''
To ensure that both transit and oversight agencies view the safety
auditing process as a ``constant activity,'' we have retained the
requirement for the transit agency to complete and submit safety
auditing reports to the oversight agency, a requirement in the APTA
Guidelines, which states that audit reports are to be used as a
``management tool.'' FTA had proposed semi-annual reports, which most
commenters objected to as a ``paperwork exercise.'' In response, we
have changed the reporting time period from semi-annually to annually
to reduce the paperwork burden.
J. Accident
To focus oversight agency accident investigations on serious events
that may show a systemic safety problem, FTA proposed to define
``accident'' as ``any event involving the operation of a rail fixed
guideway system resulting in: (1) [D]eath directly related to the
event; (2) [i]njury requiring hospitalization within twenty-four hours
of the event; (3) [a] collision, derailment, or fire causing property
damage in excess of $25,000; or (4) [a]n emergency evacuation.'' The
vast majority of commenters opposed this definition and recommended
numerous ways to change it.--
For instance, several commenters requested that FTA limit the
definition to those events involving revenue service operations, thus
excluding incidents occurring in rail yards. According to the
commenters, these kinds of incidents are covered by OSHA rules;
eliminating them from the rule, these commenters reasoned, would avoid
duplicative and perhaps conflicting jurisdiction between the oversight
agency and the State and Federal agencies responsible for enforcing
OSHA regulations. --
Some commenters recommended that any incident involving trespassers
or employees be excluded from the definition. These commenters
maintained that events involving trespassers would not necessarily
indicate a systemic safety problem; in other words, it is impossible to
protect against trespassers. Several commenters maintained that events
involving employees should not be covered to avoid duplicative
jurisdiction between the oversight agency and the State and Federal
agencies regulating the workplace. --
Other commenters recommended that FTA exclude certain kinds of
personal injuries from the definition, stating that it is difficult, if
not impossible, for a transit agency to monitor every slip, trip, or
fall that occurs at a rail fixed guideway system. They further maintain
that these kinds of injuries are not sufficiently serious to trigger an
investigation by the oversight agency. --
Still other commenters noted that, in most cases, a transit agency
would be unable to determine whether a person was hospitalized as a
result of the injury. Transit agency personnel operating in large
metropolitan areas would be forced to contact dozens of hospitals, a
task that would strain its resources; moreover, many hospitals do not
release this kind of information to the public. --
Several of these commenters recommended that FTA define accident,
in part, as any injury in which a person is treated at the scene or is
transported from the scene by medical personnel. This change would ease
the administrative burden on the rail fixed guideway system, these
commenters contended. --
Many commenters strongly objected to the $25,000 property damage
threshold, with most of them indicating that property damage estimates
are subjective and become obsolete over time; others contended that
$25,000 was too low. Some recommended that FTA annually adjust the
dollar amount for inflation, and others recommended that the dollar
amount be set by agreement between the oversight and transit agencies.
--
Several commenters recommended that FTA define an emergency
evacuation, with one proposing that it be limited to circumstances in
which emergency doors and exit routes are used, thus excluding
instances when passengers are asked to leave a train disabled in a
station. --
FTA Response. In light of the comments, FTA has made several
changes to the definition of accident. For instance, we have limited
the definition to only those events that occur during the revenue
service operation of the rail fixed guideway system, which eliminates
from the rule any injuries or deaths to workers in rail yards. We made
this change, not because these are unimportant events, but to avoid
overlapping jurisdiction among State agencies. We do, however,
encourage the oversight agency to establish a relationship with the
State agency having jurisdiction over these matters and share
information, thus making the workplace safer for rail fixed guideway
system employees. --
We disagree with commenters asking us to exclude incidents
involving trespassers from the rule. Although we sympathize with the
perspective of transit agencies, we believe that any death or injury
requiring immediate medical treatment away from the scene of the event,
which occurs while the rail fixed guideway system is in revenue
service, should be investigated by the oversight agency. --
We agree with those commenters who objected to the hospitalization
requirement and have changed the rule to state that an accident has
occurred if a person has been injured and ``immediately receives
medical treatment away from the scene of the accident.'' This language
is used in FTA's drug and alcohol rules, as well. --
Although several commenters asked us to remove property damage
dollar thresholds, we did not do so. Instead, we have raised the dollar
threshold to $100,000, which should reduce the number of accidents
involving property damage. --
Last, we have removed the portion of the definition concerning
emergency evacuations. In many instances, a serious event involving the
evacuation of a mass transit vehicle also will involve a death, an
injury requiring immediate medical treatment away from the scene, or
more than $100,000 in property damage, any of which, by themselves,
will trigger an oversight agency investigation. Hence, by making this
change we have focused an oversight agency's resources on serious
events involving the emergency evacuation of a mass transit vehicle. --
[[Page 67041]]
K. Hazardous Condition
FTA proposed to define a ``hazardous condition'' as ``any condition
which may endanger human life or property,'' and ``unacceptable
hazardous condition'' as ``a hazardous condition determined to be an
unacceptable hazardous condition using the hazard resolution matrix of
the `Rail Safety Audit Manual' published by APTA.'' FTA further
proposed to require the oversight agency to investigate only
unacceptable hazardous conditions, whereas the transit agency was to
correct or eliminate any hazardous condition. --
Several commenters were confused by these two definitions and one
maintained that the definitions were understandable only in conjunction
with the APTA Guidelines checklist number 7. --
Another commenter argued that FTA should not adopt the APTA
Guidelines' hazard classification process. This commenter stated that
[T]he Hazard Resolution Matrix contained in the APTA guidelines
is an inadequate indicator of when an investigation should be
triggered. As an example, it is well-known that currently-operating
modern escalators frequently cause minor injuries to patrons
(particularly children). Following the APTA guidelines, one would
categorize the hazard associated with an operating escalator in
Category III (marginal-minor injury). Furthermore, since escalators
are usually operating more often than not, the hazard exists all the
time the escalator is operating. Again following the APTA
guidelines, the hazard probability would be in Category A--frequent-
likely to occur frequently (individual); continuously experienced
(fleet/inventory). Under the Hazard Resolution Matrix of the APTA
guidelines, this would be a Category III-A, which would be labeled
`unacceptable.' Following the reasoning proposed in the NPRM, all
escalators would continuously have to be corrected or eliminated by
all transit agencies, and all escalator accidents investigated by
the oversight agency. Since escalators cannot be corrected (at least
so far no one has been successful in creating an escalator that
doesn't have these hazards), all escalators would have to be
eliminated from transit properties.
--In contrast, another commenter supported the use of the APTA
Guidelines Hazard Resolution Matrix because, according to this
commenter, it has been adopted and practiced by more than 95 percent of
the affected systems. --
Several commenters objected to FTA's proposal to require transit
agencies to ``correct or eliminate any hazardous condition,'' which
they characterize as an ``impossible chore.'' In the words of one
commenter, ``[i]f every transit agency was required to eliminate every
condition that may cause minor injury * * *, all of its resources would
be extended in attempting to eliminate these potential minor threats,
with little resources left to run the transit system.'' One commenter
recognized this problem also, and suggested that FTA require that
hazardous conditions be corrected, eliminated, or controlled. One
commenter maintained that the oversight agency should not be required
to investigate any hazardous condition. --
FTA Response. Although FTA has made some changes to the rule, we
have not changed the definitions. The terms ``hazardous condition'' and
``unacceptable hazardous condition'' must be read in conjunction with
the APTA Guidelines, particularly with the hazard resolution process,
checklist number 7. To identify hazards, FTA has mandated the use of
this particular process by transit agencies, even if a transit agency
has used MIL-STD 882B or 882C to develop its system safety program
plan. We have mandated this process, despite some commenters who
opposed its adoption, because it is widely used and accepted throughout
the transit industry. --
Also, the rule requires the oversight agency to investigate
unacceptable hazardous conditions as well as accidents. Although at
least one commenter opposed requiring the oversight agency to
investigate unacceptable hazardous conditions, section 5330(c)(2)(B)
requires the oversight agency to ``investigate hazardous conditions.''
To focus State resources on serious safety issues, FTA has interpreted
section 5330 narrowly, thus requiring an oversight agency to
investigate only ``unacceptable hazardous conditions.'' --
We agree with the commenters who maintained that not all hazardous
conditions can be corrected or eliminated. Risk cannot be taken out of
life. Therefore, we require a transit agency to correct or eliminate
any hazardous condition if possible, and if not, the transit agency
must either minimize or control it. For instance, one commenter noted
that escalators are hazardous conditions, which can be corrected only
by eliminating the escalator. Under this rule, the transit agency is
not required to eliminate escalators, but it is required to minimize or
control the risks associated with escalators. A transit agency can take
one or more of several actions to minimize these risks, such as
installing an emergency shut-off switch, retrofitting the escalator
with additional safety devices, posting instructions on how to avoid
accidents on escalators, or developing educational programs for
children on how to properly use escalators. Many transit agencies have
addressed the safety issues of escalators, but we urge them to consider
other measures to make escalators safer, especially for children. --
L. Investigations
FTA proposed to require the oversight agency to develop its own
investigation procedures and to investigate accidents, except those
being investigated by the National Transportation Safety Board (NTSB),
and all unacceptable hazardous conditions. --
Twenty-seven commenters responded to issues arising from this
proposal. Although one commenter stressed that the oversight agency
should not conduct any investigations, most commenters focused on the
oversight agency's role in investigating an ``accident'' or
``unacceptable hazardous condition.'' The vast majority of these
commenters maintained that the oversight agency should not conduct its
own independent investigation, but should focus on the process used by
the transit agency in conducting investigations. These commenters noted
that the transit agency must be responsible for operating its own
system; an independent investigation by the oversight agency may
implicitly usurp the authority of the transit agency over safety and
other operational matters, according to these commenters. Others
insisted that although the oversight agency's primary responsibility
was to ensure that the transit agency properly conducted
investigations, it should nevertheless be authorized to investigate
extraordinary events. One commenter maintained that the oversight
agency should not investigate an ``accident'' or ``unacceptable
hazardous condition'' unless the transit agency's investigation is
inadequate. --
FTA Response. Despite the opinion of at least one commenter, the
oversight agency is required under section 5330 to investigate
accidents and hazardous conditions. As discussed above, we proposed to
define ``accident'' in a manner to focus the oversight agency's
investigation on serious events of a systemic nature. Similarly,
instead of proposing to require the oversight agency to investigate all
``hazardous conditions,'' we proposed that it investigate only
``unacceptable hazardous conditions.'' We have not changed this basic
scheme. -
Moreover, we believe that our proposal was misunderstood, and we
seek now to clarify the role of the oversight agency in conducting
investigations. The oversight agency is not only responsible for
developing its own investigatory procedures, it is
[[Page 67042]]
responsible for determining how it will investigate. An oversight
agency may contract for this service; some may elect to use APTA's
Panel of Inquiry, others may choose to use other experts. The oversight
agency may allow the transit agency to conduct some or all
investigations. The oversight agency may choose to investigate all
``accidents'' and ``unacceptable hazardous conditions'' or investigate
some and contract for the investigation of others. The rule is flexible
in this regard, just as we had proposed in the NPRM. Although the
examples set forth above are not exhaustive, ultimately, unless the
NTSB is conducting an investigation, either the oversight agency or an
entity acting on its behalf must investigate ``accidents'' and
``unacceptable hazardous conditions.''
We do, however, encourage the oversight agency to either directly
or by contract conduct independent investigations. Moreover, we
disagree strongly with commenters who maintain that the oversight
agency should focus on the process used by the transit agency to
conduct investigations. The purpose of this rule is to ensure that a
rail fixed guideway system operates safely and that the systemic causes
of ``accidents'' and ``unacceptable hazardous conditions'' are
addressed; focusing on process in this context, therefore, is
misplaced. Rather, the focus of the oversight agency should be to
assist the transit agency in preventing ``accidents'' and ``hazardous
conditions.''
M. Confidentiality of Oversight Agency Investigation Reports
Several commenters to the ANPRM requested that we include a
provision in the rule barring the discovery or the use in evidence of
any investigative report compiled as a result of this rule. In the
NPRM, we noted that section 5330 did not specifically address this
matter, and hence, we doubted that we could make such a mandate.
Nevertheless, we asked whether we should adopt a provision which would
require that the oversight agency investigation reports be kept
confidential.
Almost every commenter favored the adoption of such a provision.
One commenter wrote:
[T]he investigations at rail fixed guideway systems are often
confidential * * * and thus they are not subject to discovery or
public disclosure. If the information gathered by the states becomes
a public document, then the FTA will be building into this
regulation a serious conflict between the state agencies and the
[rail] fixed guideway systems. In order to ensure better gathering
of information by the states, and to maintain unreserved cooperation
with the local transit systems, it is strongly recommended that the
information gathered by the states must be protected from
disclosure.
Another commenter wrote ``[w]e submit that a discovery exemption is
critical to the efficient operation of the oversight agency, as it
would protect the agency's limited staff and resources from the
inundation of subpoenas and other discovery requests.'' Yet another
commenter wrote that
[The rail fixed guideway system] believes that FTA should
provide protection for Attorney-Client privilege under the proposed
rule to include investigative materials and materials pertaining to
`hazardous condition' discussions or findings by the State oversight
agency. If FTA does not have the statutory authority to provide such
protection, it should require the States to do so. The loss of [the
rail fixed guideway system's] Attorney-Client privilege over such
documents would have a serious negative economic impact on third
party litigation. -
The remaining commenters maintained that although the issue is an
important one, FTA should remain silent on it.
FTA Response. FTA agrees strongly that the oversight agency
investigation reports should be kept confidential; thus, we have added
a provision to the rule permitting a State to require that these
reports be kept confidential, and we encourage strongly that the State
authorize the oversight agency to do so.
N. Certified Transit Safety Professional.
FTA proposed to require the use of Certified Transit Safety
Professionals primarily in response to comments to the ANPRM and
related public hearings, which reflected concern throughout the transit
industry about the expertise necessary to carry out an effective
oversight program. These commenters maintained that an effective
oversight program could not be achieved without the use of certified
safety professionals.
In response to these comments, the NPRM proposed to require both
the oversight agency and the transit agency to use the services of a
Certified Transit Safety Professional, either from within their own
organizations or under contract, to comply with the requirements of the
rule. A Certified Transit Safety Professional was defined as one who
had ``successfully completed the Safety Professional Certification
requirements established by the Board of Certified Safety
Professionals, * * * or, a registered professional engineer in system
safety.'' FTA also sought comment on whether it should require a
Certified Transit Safety Professional to have a minimum number of years
of experience in transit safety.
Forty-seven comments were received on this matter, which was among
the most controversial proposals in the NPRM. Although most commenters
opposed the inclusion of this concept in the final rule, some
recommended changes to the definition of certified transit safety
professional. For instance, several commenters noted that organizations
other than the Board of Certified Safety Professionals certify safety
professionals, such as the World Safety Organization or the Federal
Railroad Administration. Others recommended that the rule recognize
experience equivalent to the training required by the Board of Safety
Professionals. One commenter recommended that, in addition to
certification, a Certified Transit Safety Professional be required to
have a minimum number of years of experience.
Several commenters opposing this proposal maintained that the Board
of Certified Safety Professionals does not certify professionals in
transit safety. The Board of Safety Professionals, however, did not
oppose this proposal. Instead, they recommended that FTA require the
certified transit safety professional's certification to be current.
Several commenters noted that States do not certify professional
engineers in system safety, although one commenter noted that the Board
of Certified Safety Professionals 1993-1994 Directory listed 200 Safety
Professionals certified in system safety.
One commenter who opposed this proposal nevertheless recommended
that FTA require safety professionals to complete FTA's Rail System
Safety Course. Another commenter recommended that a peer group develop
guidelines concerning the experience and training for transit safety
professionals, which a transit agency could adopt. Other commenters
objected to the proposal stating that such a training requirement would
be too expensive.-
FTA Response. In response to the overwhelming comments opposed to
this proposal, FTA has removed the Certified Transit Safety
Professional provision from the rule. We do, however, urge the States
to develop their own criteria to ensure that both the transit and
oversight agencies are using qualified professionals under this rule to
ensure the safe operation of rail fixed guideway systems. In this
regard, we recommend that safety professionals, at a minimum, have
transit safety experience and complete the courses at the
Transportation Safety Institute (TSI) sponsored by FTA applicable to
rail transit systems. TSI offers the following
[[Page 67043]]
courses: System Safety, Accident Investigation, System Security, and
Emergency Management. FTA has provided training assistance to the
transit industry in safety since 1976, and this program will be a major
contribution to State Safety Oversight. Moreover, we urge States to
require safety employees to be certified by the Board of Certified
Safety Professionals, the World Safety Organization, or other
comparable organization; safety professionals should possess a certain
level of experience as well.
III. Section-by-Section Analysis
Please note that issues addressed in the Section-by-Section
Analysis may also be discussed in the Discussion of the Comments.
Subpart A--General Provisions
A. Purpose. (Sec. 659.1)
This section explains that FTA is implementing the requirements of
49 U.S.C. Sec. 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 system safety program standard and to
require the transit agency to develop a system safety program plan that
complies with the system safety program standard. In addition, the
oversight agency must conduct safety reviews and investigations and
ensure that the transit agency has developed and implemented a system
safety program plan that complies with this rule and is effective.
B. Scope. (Sec. 659.3)
This section explains that the rule applies only to States with
rail fixed guideway systems that are not regulated by the FRA.
C. Definitions. (Sec. 659.5)
1. Accident
An accident triggers an investigation by the oversight agency or
its agent, and is defined as an event that occurs when the rail fixed
guideway system is in revenue service and an individual dies or is
injured and immediately receives medical treatment away from the scene;
or a collision, derailment, or fire results in $100,000 in property
damage.
Injuries, deaths, or property damage that occur when the rail fixed
guideway system is not in revenue service are excluded from the
definition. Hence, under the rule, the oversight agency or its agent is
not required to investigate these events, but may do so under its own
authority.
An ``individual'' means anyone, including a passenger, trespasser,
employee, or other bystander.
2. APTA Guidelines
The ``APTA Guidelines'' means the ``Manual for the Development of
Rail Transit System Safety Program Plans'' published by the American
Public Transit Association on August 20, 1991.
3. Contractor
A ``contractor'' means an entity that performs tasks required under
this part on behalf of the oversight or transit agency. A transit
agency may not be a contractor for an oversight agency.
4. FTA
The ``FTA'' means the Federal Transit Administration, an agency of
the United States Department of Transportation.
5. Hazardous Condition
``Hazardous Condition'' means a condition that may endanger human
life or property. It encompasses ``unacceptable hazardous conditions,''
defined below.
6. Investigation
``Investigation'' means the process used to determine the probable
cause of the ``accident'' or ``unacceptable hazardous condition.'' It
includes a review by the oversight agency of the transit agency's
determination of the probable cause of an ``accident'' or
``unacceptable hazardous condition.''
An ``investigation'' may be conducted by the oversight agency
itself or by some other entity acting on its behalf, or the
investigation may be conducted by the transit agency. If the oversight
agency chooses the latter method it must, at a minimum, review and
approve the transit agency's findings of probable cause of the
``accident'' or ``unacceptable hazardous condition.''
7. Oversight Agency
The agency designated by the State or affected States to implement
the requirements of this part.
8. 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 is included in FTA's calculation of fixed guideway route
miles or receives funding under FTA's formula program for urbanized
areas and is not regulated by the Federal Railroad Administration.
9. Safety
``Safety'' means freedom from danger; it includes freedom from
unintentional as well as intentional acts.
10. Safety Review
``Safety review'' means a comprehensive review by the oversight
agency of the transit agency's safety practices. It includes an
analysis by the oversight agency of the efficacy of the transit
agency's system safety program plan and a determination of whether the
system safety program plan must be modified, changed, or updated. The
safety review must be conducted at the rail fixed guideway system.
11. Security
``Security'' means freedom from intentional danger. Intentional
danger includes criminal acts such as muggings, rapes, robberies, or
terrorists acts, such as bombings, releases of poisonous gases, or
kidnappings.
12. System Safety Program Plan
``System safety program plan'' means the written document developed
by the transit agency in accordance with the requirements of the
oversight agency's system safety program standard.
13. System Safety Program Standard
``System safety program standard'' means the document developed by
the oversight agency that complies, at a minimum, with the APTA
Guidelines and requires the rail fixed guideway system to address the
personal security of its passengers and employees. It may contain more
requirements than the APTA Guidelines. The transit agency must comply
with this document when it develops its system safety program plan.
14. Transit Agency
``Transit agency'' means the entity operating the rail fixed
guideway system.
15. Unacceptable Hazardous Condition
An ``unacceptable hazardous condition'' is a particular kind of
hazardous condition determined by using the Hazard Resolution Matrix
contained in the APTA Guidelines at checklist number 7.
D. Withholding of Funds for Non-Compliance. (Sec. 659.7)
This section is taken from section 5330, which authorizes FTA to
withhold Federal funding from a State or an urbanized area in the
State. In particular, FTA is authorized to withhold up to five percent
of an affected urbanized area's apportionment if the State, in the
opinion of FTA, is not in compliance or making adequate efforts to
comply with the rule. The sanctions for non-compliance do not begin
until September 30, 1997. In the event of non-compliance with the rule,
[[Page 67044]]
the Administrator may withhold funds until the State comes into
compliance.
Subpart B--The Role of the State
A. Designation of Oversight Agency. (Sec. 659.21)
This section directs the State to select an agency to oversee the
rail fixed guideway system and prohibits the State from selecting the
transit agency to perform this role. Paragraph (a) concerns rail fixed
guideway systems that operate within only one State. In these
instances, the State must designate a State agency to implement the
rule. If the State chooses, this paragraph allows the State to
designate an oversight agency for each rail fixed guideway system
within the State. For instance, a State may wish to designate one
agency for an historical trolley system and another for the remaining
systems within the State. The rule is flexible in this regard and is
written to accommodate those States that have established an oversight
program under State law.
For those States that have not established an oversight program and
have more than one rail fixed guideway system within the State, we
recommend that the State designate only one agency to implement the
rule. This would save resources and ensure the consistent application
of the rule.
Paragraph (b) is directed to States that jointly operate a multi-
State rail fixed guideway system. Although we recommend that the
affected States designate a single oversight agency, this paragraph
allows them to designate more than one agency, other than the transit
agency, to implement the rule. Moreover, this paragraph recognizes that
a single oversight agency designated by the affected States will not be
an agency of any particular State.
B. Confidential Accident Reports. (Sec. 659.23)
This section permits the State to require the oversight agency to
keep investigation reports confidential in civil litigation.
Subpart C--The Oversight Agency's Role
A. The System Safety Program Standard. (Sec. 659.31)
This section directs the oversight agency to develop a system
safety program standard that complies, at a minimum, with the American
Public Transit Association's ``Manual for the Development of Rail
Transit System Safety Program Plans'' (APTA Guidelines) available from
the American Public Transit Association, 1201 New York Avenue, N.W.,
Washington, D.C. 20005-3917 or Office of Safety and Security, Federal
Transit Administration, 400 Seventh Street, S.W., Washington, D.C.
20590, and requires the transit agency to address the personal security
of its passengers and employees.
As discussed above, because the APTA Guidelines were derived from
MIL-STD 882B, we believe that existing oversight agencies that have
used MIL-STD 882B or its successor MIL-STD 882C to create their
oversight programs should meet, if not exceed, the APTA Guidelines,
although we recommend that these existing oversight agencies review
their programs in this regard.
This section further directs the oversight agency to develop a
standard that would require the transit agency to address the personal
security of its passengers and employees. In this regard, FTA has
neither developed specifications nor adopted a standard for the
oversight agency to follow. Instead, we have published, independently,
two ``how to'' documents to be used by both the oversight and transit
agencies in developing security standards and procedures. These
documents, ``Transit Security Procedures Guide'' and ``Transit System
Security Program Planning Guide,'' are available free of charge from
the Office of Safety and Security, Federal Transit Administration, at
the address noted above. Although the use of these documents is not
mandated under the rule, we recommend strongly that every affected
State and transit agency obtain copies and review them. As noted above,
FTA also offers several courses on security through TSI. Moreover, we
suggest that the oversight agency require the transit agency to address
such criminal acts as terrorist activities and ``street crime'' such as
muggings, rapes, drug dealings, etc.
This section also allows the oversight agency to create a program
that is more stringent than that required under the APTA Guidelines,
although we urge those agencies not to adopt FRA-type regulations.
B. System Safety Program Plans. (Sec. 659.33)
This section establishes January 1, 1997, as the deadline for the
implementation of the system safety program plan and requires the
oversight agency to have initially reviewed and approved it before that
date. It further establishes January 1, 1998, as the implementation
date for the security provisions of the system safety program plan. It
also requires the oversight agency to direct the transit agency to
update the system safety program plan as necessary. The oversight
agency may decide that it is necessary for a system safety program plan
to be updated at certain intervals, or it may make a determination
based on accident statistics or results from safety audits or reviews,
for example. Should the oversight agency make such a determination,
this section directs it to again review and approve the transit
agency's updated system safety program plan.
This section allows the oversight agency to determine whether the
security provisions of the system safety program plan should be
publicly available. FTA recommends strongly that the oversight agency
prohibit the transit agency from publicly disclosing the security
portions of the system safety program plan under any circumstance.
C. Transit Agency Annual Audit Reports. (Sec. 659.35)
Checklist number 9 of the APTA Guidelines requires the transit
agency to draft a report summarizing the findings of its internal
safety audit. This section of the rule requires the annual submission
of that report to the oversight agency for its review.
D. Safety Reviews. (Sec. 659.37)
At least every three years, the oversight agency must conduct an
on-site safety review of the transit agency's implementation of its
system safety program plan. After this review has been completed, the
oversight agency must issue a report detailing its findings and
recommendations, its analysis of the system safety program plan, and
its determination whether the safety program plan should be updated or
changed.
E. Transit Agency Report on Accidents and Unacceptable Hazardous
Conditions. (Sec. 659.39)
To investigate ``accidents'' and ``unacceptable hazardous
conditions'' as required by section 5330, the oversight agency must
know about them. This section directs the oversight agency to require
the transit agency to report ``accidents'' and ``unacceptable hazardous
conditions'' within the time specified by the oversight agency.
F. Investigations. (Sec. 659.41)
As discussed above in the Discussion of the Comments, the oversight
agency is not required to conduct the investigation itself, but may do
so through another entity such as a
[[Page 67045]]
contractor or even the transit agency. The oversight agency, however,
must decide how it is going to conduct an investigation and establish
the procedures it or the entity acting on its behalf will use.
There are numerous ways the oversight agency may comply with this
requirement. For instance, the oversight agency may establish one set
of procedures to investigate accidents and another to investigate
unacceptable hazardous conditions. The oversight agency may use a
contractor, such as the APTA Panel of Inquiry, to investigate certain
kinds of accidents and its own staff to investigate others.
The rule is intentionally flexible to allow the oversight agency to
adapt an oversight program to the needs of the rail fixed guideway
systems within the State's jurisdiction.
G. Corrective Actions. (Sec. 659.43)
Section 659.41 requires the oversight agency to investigate
``unacceptable hazardous conditions.'' This section directs the
oversight agency to require the transit agency to develop a corrective
action plan to eliminate, minimize, or control investigated hazardous
conditions in accordance with the approved corrective action plan and
within the time period specified by the oversight agency.
H. Oversight Agency Report to the Federal Transit Administration.
(Sec. 659.45)
This section requires three kinds of reports: initial, annual, and
periodic. The initial submission contains information that will not
change frequently, such as the name and address of the oversight agency
and the transit agencies it oversees, a copy of the system safety
program standard, and a description of the oversight agency's
procedures for conducting investigations and ensuring that the transit
agency has undertaken appropriate corrective actions. This report must
be updated only when some of the information within it changes.
The annual submission describes the activities of the oversight
agency for the previous twelve months, including any determinations by
the oversight agency of the probable cause of ``accidents'' and
``unacceptable hazardous conditions,'' if it can do so and protect the
confidentiality of investigation reports. This section allows an
oversight agency required to submit annual reports to the State to
submit the same report to FTA, if it contains all the necessary
information.
Last, this section allows FTA to periodically ask the oversight
agency to submit certain kinds of information such as the status
reports on ``accidents,'' ``hazardous conditions,'' and corrective
action plans. These reports must be submitted only upon FTA's request.
I. Use of Contractors. (Sec. 659.47)
This section expressly allows the oversight or transit agency to
use contractors to perform certain tasks required under the rule. The
agencies may use a contractor to perform some or all of these tasks.
For instance, an oversight agency may use a contractor to conduct only
accident investigations, while another may use a contractor solely to
conduct safety reviews. A transit agency may not be a contractor for
the oversight agency, however.
J. Certification of Compliance. (Sec. 659.49)
This section requires the oversight agency to initially certify
before January 1, 1997, that it has complied with the rule. Thereafter,
the oversight agency is required to certify annually that it is in
compliance with the rule.
IV. Economic Analysis
FTA has evaluated the industry-wide costs and benefits of the rule,
``Rail Fixed Guideway Systems; State Safety Oversight,'' which requires
a State to develop, through an oversight agency, a program to oversee
the safety of rail fixed guideway systems. At least 19 States will be
required to create an oversight agency that must:
Develop a System Safety Program Standard which includes
provisions addressing security.
Approve the transit agency's initial system safety program
plan.
Conduct safety reviews.
Establish investigation procedures.
Investigate accidents and unacceptable hazardous
conditions.
Ensure the transit agency complies with the oversight
agency's system safety program standard.
Review corrective action plans.
Report to FTA.
At least 33 transit agencies must:
Develop a System Safety Program Plan and update it, as
necessary.
Prepare annual audit reports.
Conduct safety audits.
Classify hazardous conditions according to the APTA Hazard
Resolution Matrix.
Report accidents and unacceptable hazardous conditions to
the oversight agency.
Prepare corrective action plans.
Handle hazardous conditions according to approved
corrective action plans.
Maintain safety data.
Generally, in analyzing the costs of this rule, the Regulatory
Evaluation considered only those activities required by the rule. For
those States and transit agencies that have already established a
program similar to the one required by the rule, the Regulatory
Evaluation considered only those activities necessary to bring these
programs into compliance with the rule. Year One costs are estimated to
be approximately $336,000, the lowest for any single year. This is
because the costs incurred in Year One are generally limited to
activities of the oversight agencies and the FTA. Total costs for the
first ten years are estimated to be approximately $9.1 million.
The estimated benefits of the rule are assumed to take full effect
in the third year of implementation, 1998. Therefore, the estimated
fatalities and injuries averted are based on an eight-year period. For
this period there would be 16 fatalities and 1,528 injuries averted.
Based on the Department's Willingness to Pay Threshold, the total
benefit of the rule is approximately $107 million over a ten-year
period.
V. Regulatory Process Matters
A. Executive Order 12866
FTA has evaluated the costs and benefits to the States of creating
an oversight program to oversee the safety of rail fixed guideway
systems and has determined that this rule is a major rule under
Executive Order 12866 because it affects State and local governments.
B. Departmental Significance
This proposed rule is a ``significant regulation'' under the
Department's Regulatory Policies and Procedures, because it changes an
important Departmental policy. That policy change requires the States
to oversee the safety of rail fixed guideway systems, something the
Federal government has never before required.
C. Regulatory Flexibility Act
In accordance with 5 U.S.C. 603(a), FTA has evaluated the effects
of this proposed rule on small entities. Based on this evaluation, FTA
hereby certifies that this action will not have a significant economic
impact on a substantial number of small entities because the affected
transit agencies will in most cases be large.
D. Paperwork Reduction Act
The information collection requirements in this rule have been
reviewed and approved by the Office of Management and Budget under OMB
#2132-0558.
[[Page 67046]]
E. Executive Order 12612
We have reviewed this rule under the requirements of Executive
order 12612 on Federalism. FTA has determined that since this rule has
significant Federalism implications it warrants a Federalism
assessment. We note, however, that this rulemaking is mandated by 49
U.S.C. 5330, which requires a State to create an oversight agency to
oversee the safety of rail fixed guideway systems.
In considering the Federalism implications of the proposed rule,
FTA has focused on several key provisions of Executive order 12612.
Necessity for action. This rule is mandated by law, which requires
that rail fixed guideway systems be subject to State oversight.
Approximately twenty-one States have rail fixed guideway systems
operating within their jurisdictions. Of those, only five States have
established a State oversight program.
Consultation with State and local governments. FTA's mission is to
provide financial assistance to mass transportation systems throughout
the nation, thus providing grants to State and local governments.
Because this rule will affect almost half of the States as well as many
local governments, we published an ANPRM on June 25, 1992, at 57 FR
28572, to solicit the views of State and local governments. In
addition, we held three public hearings in conjunction with the ANPRM.
Also, FTA published an NPRM on December 9, 1993, at 58 FR 64855, on
which numerous State and local governmental agencies commented.
Moreover, we held a public hearing on the NPRM on March 8, 1994, in
conjunction with an American Public Transit Association conference,
thus allowing more State and local agencies to participate in the
development of this rule. In short, we actively sought the views and
comments of the affected States.
Need for Federal action. This rule responds to a Congressional
mandate but is designed to give a State maximum flexibility in
designing its own oversight program.
Authority. The statutory authority for this rule is discussed
elsewhere in this preamble.
Pre-emption. This rule does not, as such, pre-empt State or local
law. There may be instances in which a State or local agency faces a
conflict between compliance with the rule and State and local
requirements. Because compliance with the rule is a condition of
Federal financial assistance, State and local governments have the
option of not seeking the Federal funds if they choose not to comply
with this rule.
F. National Environmental Policy Act
FTA has determined that this rule has no environmental
implications. Its purpose is to create a State oversight program
designed to oversee the safety of rail fixed guideway systems.
G. Energy Impact Implications
This regulation does not affect the use of energy because it
creates a State oversight program designed to oversee the safety of
rail fixed guideway systems.
List of Subjects in 49 CFR Part 659
Grant programs--transportation, Incorporation by reference, Mass
transportation, Reporting and recordkeeping requirements, Safety,
Security, and Transportation.
Accordingly, for the reasons cited above, the agency amends title
49 of the Code of Federal Regulations by adding a new 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.
659.7 Withholding of funds for non-compliance.
Subpart B--The Role of the State
659.21 Designation of oversight agency.
659.23 Confidential investigation reports.
Subpart C--The Oversight Agency's Role
659.31 The system safety program standard.
659.33 System safety program plans.
659.35 Transit agency annual audit reports.
659.37 Safety reviews.
659.39 Transit agency report on accidents and unacceptable
hazardous conditions.
659.41 Investigations.
659.43 Corrective actions.
659.45 Oversight agency report to the Federal Transit
Administration.
659.47 Use of contractors.
659.49 Certification of compliance.
Appendix to Part 659--Sample Certification of Compliance.
Authority: 49 U.S.C. Sec. 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 of rail fixed guideway systems through a designated
oversight agency.
Sec. 659.3 Scope.
This part applies to a State that has within its boundaries a rail
fixed guideway system not regulated by the Federal Railroad
Administration (FRA).
Sec. 659.5 Definitions.
As used in this part--
Accident means any event involving the revenue service operation of
a rail fixed guideway system if as a result:
(1) An individual dies;
(2) An individual suffers bodily injury and immediately receives
medical treatment away from the scene of the accident; or
(3) A collision, derailment, or fire causes property damage in
excess of $100,000.
APTA Guidelines means the American Public Transit Association's
``Manual for the Development of Rail Transit System Safety Program
Plans,'' published on August 20, 1991.
Contractor means an entity that performs tasks required by this
part on behalf of the oversight or transit agency. The transit agency
may not be a contractor for the oversight agency.
FTA means the Federal Transit Administration, an agency within the
U.S. Department of Transportation.
Hazardous condition means a condition that may endanger human life
or property. It includes unacceptable hazardous conditions.
Investigation means a process to determine the probable cause of an
accident or an unacceptable hazardous condition; it may involve no more
than a review and approval of the transit agency's determination of the
probable cause of an accident or unacceptable hazardous condition.
Oversight agency means the entity, other than the transit agency,
designated by the State or several States to implement this part.
Rail fixed guideway system means any light, heavy, or rapid rail
system, monorail, inclined plane, funicular, trolley, or automated
guideway that is:
(1) 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); and
(2) Not regulated by the Federal Railroad Administration.
Safety means freedom from danger.
Safety review means a formal, comprehensive, on-site examination by
the oversight agency of a transit agency's safety practices to
determine whether they comply with the policies and procedures required
under the transit agency's system safety program plan.
Security means freedom from intentional danger.
System safety program plan means a document adopted by the transit
agency
[[Page 67047]]
detailing its safety policies, objectives, responsibilities, and
procedures.
System safety program standard means the standard developed and
adopted by the State oversight agency which, at a minimum, complies
with the APTA Guidelines and which addresses personal security.
Transit agency means an entity operating a rail fixed guideway
system.
Unacceptable hazardous condition means a hazardous condition
determined to be an unacceptable hazardous condition using the APTA
Guidelines' Hazard Resolution Matrix (APTA Guidelines, checklist number
7).
Sec. 659.7 Withholding of funds for non-compliance.
The Administrator of the FTA may withhold up to five percent of the
amount required to be apportioned for use in any State or affected
urbanized area in such State under FTA's formula program for urbanized
areas for any fiscal year beginning after September 30, 1997, if the
State in the previous fiscal year has not met the requirements of this
part and the Administrator determines that the State is not making
adequate efforts to comply with this part.
Subpart B--The Role of the State
Sec. 659.21 Designation of oversight agency.
(a) For a transit agency or agencies operating within a single
State, the State must designate an agency of the State, other than a
transit agency, to serve as the oversight agency and to implement the
requirements of this part.
(b) For a transit agency operating a system within more than one
State, those States may designate a single entity, other than the
transit agency, to implement the requirements of this part.
Sec. 659.23 Confidential investigation reports.
The State may prohibit an investigation report that may be prepared
by the oversight agency from being admitted into evidence or used in a
civil action for damages resulting from a matter mentioned in the
report.
Subpart C--The Oversight Agency's Role
Sec. 659.31 The system safety program standard.
(a) The oversight agency must develop and adopt a system safety
program standard that, at a minimum--
(1) Complies with the American Public Transit Association's
``Manual for the Development of Rail Transit System Safety Program
Plans'' (APTA Guidelines) published on August 20, 1991, hereby
incorporated by reference; and
(2) Requires the transit agency to address the personal security of
its passengers and employees.
(b) The APTA Guidelines specify procedures for developing a system
safety program plan, generally discuss the principles of system safety,
and specifically address certain issues critical to the safe operation
of a rail fixed guideway system.
(c) The incorporation by reference of the APTA Guidelines has been
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR Part 51. Copies of the APTA Guidelines may be
obtained from the American Public Transit Association, 1201 New York
Avenue, N.W., Washington D.C. 20005-3917, (202) 893-4000. The
Guidelines may be inspected at, and are available from the Federal
Transit Administration, Office of Safety and Security, 400 7th Street,
S.W., Washington, D.C. 20590, and at the Office of the Federal
Register, 800 North Capitol Street, N.W., Washington, D.C.
Sec. 659.33 System safety program plans.
(a) Except as provided in Sec. 659.33(b), the oversight agency must
require the transit agency to--
(1) Implement, beginning on January 1, 1997, a system safety
program plan conforming to the oversight agency's system safety program
standard; and
(2) Approve in writing before January 1, 1997, the transit agency's
system safety program plan.-
(b) The oversight agency must require the transit agency to--
(1) Implement, beginning on January 1, 1998, the security portions
of its system safety program plan; and
(2) Approve in writing before January 1, 1998, the security
portions of the transit agency's system safety program plan.
(c) After December 31, 1996, the oversight agency must review and
approve, in writing, the transit agency's system safety program plan,
as necessary, and require the transit agency to update its system
safety program plan, as necessary.
(d) The oversight agency may prohibit a transit agency from
publicly disclosing the security aspects of the system safety program
plan.
Sec. 659.35 Transit agency annual audit reports.
The oversight agency must--
(a) Require that the transit agency submit, annually, a copy of the
annual safety audit report prepared by the transit agency as a result
of the Internal Safety Audit Process (APTA Guidelines, checklist number
9); and
(b) Review the annual safety audit reports prepared by the transit
agency.
Sec. 659.37 Safety reviews.
At least every three years the oversight agency must conduct an on-
site safety review of the transit agency's implementation of its system
safety program plan and prepare and issue a report containing findings
and recommendations resulting from that review, which, at a minimum,
must include an analysis of the efficacy of the system safety program
plan and a determination of whether it should be updated.
Sec. 659.39 Transit agency report on accidents and unacceptable
hazardous conditions.
The oversight agency must require that the transit agency report
accidents and unacceptable hazardous conditions to the oversight agency
within a specified period of time.-
Sec. 659.41 Investigations.
The oversight agency must--
(a) Establish procedures to investigate accidents and unacceptable
hazardous conditions.
(b) Unless the National Transportation Safety Board has
investigated or will investigate an accident, the oversight agency must
investigate accidents and unacceptable hazardous conditions occurring
at a transit agency under its jurisdiction.
Sec. 659.43 Corrective actions.
The oversight agency must require the transit agency to minimize,
control, correct, or eliminate any investigated hazardous condition
within a time period specified by and in accordance with a corrective
action plan approved by the oversight agency.
Sec. 659.45 Oversight agency report to the Federal Transit
Administration. -
(a) Initial submissions. Before January 1, 1997, the oversight
agency must submit to FTA the following information, which must be
updated as necessary: -
(1) The name and address of the oversight agency; -
(2) The name(s) and address(es) of the transit agency or agencies
subject to the oversight agency's jurisdiction under this part; and -
(3) A written description of the oversight agency's oversight
program including the following information: -
(i) A copy of its system safety program standard; -
(ii) Its procedures or process for reviewing and approving the
transit agency's system safety program plan; -
[[Page 67048]]
(iii) Its investigatory procedures; and -
(iv) Its procedures for ensuring that appropriate corrective
actions have been taken by the transit agency to correct, eliminate,
minimize, or control investigated hazardous conditions. -
(b) Annual submissions. Before January 1 of each year, the
oversight agency must submit to FTA a publicly available annual report
summarizing its oversight activities for the preceding twelve months,
including a description of the most common probable causal factors of
accidents and unacceptable hazardous conditions. -
(c) Periodic submissions. Status reports of accidents, hazardous
conditions, and corrective action plans must be forwarded to the FTA
upon request. -
(d) Addresses. Reports and annual summaries must be sent to:
Federal Transit Administration, Office of Safety and Security, 400 7th
Street, S.W., Washington, D.C. 20590.
Sec. 659.47 Use of contractors. -
(a) The oversight agency may use a contractor to---
(1) Develop a system safety program standard; -
(2) Review system safety program plans; -
(3) Review annual audit reports; -
(4) Conduct safety reviews; -
(5) Prepare safety review findings; -
(6) Establish investigation procedures; -
(7) Conduct investigations; -
(8) Review corrective action plans; and/or -
(9) Prepare initial or annual submissions to FTA. -
(b) The oversight agency may allow a transit agency to use a
contractor to---
(1) Develop or update a system safety program plan; -
(2) Prepare annual audit reports; and/or -
(3) Develop a corrective action plan.
Sec. 659.49 Certification of compliance. -
(a) Before January 1, 1997, and annually thereafter, the oversight
agency must certify to the FTA that it has complied with the
requirements of this part. Each certification shall comply with the
applicable sample certification provided in the appendix to this part.
Each certification shall be sent to: Federal Transit Administration,
Office of Safety and Security, 400 7th Street, S.W., Washington, D.C.
20590. -
(b) Each certification must be signed by an official authorized by
the oversight agency and must comply with the applicable sample
certification provided in the appendix to this part.
Appendix to Part 659--Sample Certification of Compliance -
This appendix contains an example of certification language. - -
I, (name), (title), certify that (name of the oversight agency)
has implemented a State oversight program that meets the
requirements of 49 CFR part 659 and further certify that I have no
conflict of interest with any rail fixed guideway system overseen as
a result of 49 CFR part 659, nor does (name of the oversight agency)
and its contractors.
Issued: December 18, 1995. ----- ------ ------
Gordon J. Linton,
Administrator.
[FR Doc. 95-31159 Filed 12-26-95; 8:45 am]
BILLING CODE 4910-57-U