[Federal Register Volume 69, Number 46 (Tuesday, March 9, 2004)]
[Proposed Rules]
[Pages 11218-11232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5148]



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Part IV





Department of Transportation





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Federal Transit Administration



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49 CFR Part 659



Rail Fixed Guideway Systems; State Safety Oversight; Proposed Rule

  Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 659

[Docket No. FTA-2004-17196]
RIN 2132-AA76


Rail Fixed Guideway Systems; State Safety Oversight

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FTA proposes to revise its regulation for State oversight of 
rail transit safety and security programs. FTA believes that these 
changes will clarify and improve the performance of existing 
requirements; respond to recommendations identified by oversight 
agencies and rail transit agencies; and address new concerns for 
security and emergency preparedness. Also, the new rule will include 
guidance that FTA has issued in the past several years as part of its 
audit program and technical assistance. Proposed changes are the result 
of FTA's on-going evaluation of State and rail transit programs 
performed since 1997 and outreach conducted over the last year.

DATES: Comments on this proposed rule must be submitted by June 7, 
2004.

ADDRESSES: Written comments must refer to the docket number appearing 
above and must be submitted to the United States Department of 
Transportation (U.S. DOT), Central Docket Office, PL-401, 400 Seventh 
Street SW., Washington, DC 20590. All comments received will be 
available for inspection at the above address from 10 a.m. to 5 p.m., 
Monday through Friday, except Federal holidays. Those desiring the 
agency to acknowledge receipt of their comments should include a self-
addressed stamped postcard with their comments. Commenters may also 
submit their comments electronically. Instructions for electronic 
submission may be found at the following web address: http://dms.dot.gov/submit/. The public may also review docketed comments 
electronically. The following web address provides instructions and 
access to the DOT electronic docket: http://dms.dot.gov/search/. The 
Dockets Management System (DMS) is available 24 hours each day, 365 
days each year. Please follow the online instructions for more 
information and help.
    Electronic Access: Electronic access to this rule and a side-by-
side table of the current rule and the proposed rule, along with other 
safety rules, may be obtained through the FTA Office of Safety and 
Security home page at http://transit-safety.volpe.dot.gov. An 
electronic copy of this document may be downloaded, using a modem and 
suitable communications software, from the Government Printing Office's 
(GPO) Electronic Bulletin Board Service at (202) 512-1661. Internet 
users may download this document from the Federal Register's homepage 
at http://www.nara.gov/fedreg and from the GPO database at http://www.access.gpo.gov/nara.

FOR FURTHER INFORMATION CONTACT: Jerry Fisher or Roy Field, Office of 
Safety and Security, Federal Transit Administration, (202) 366-2896 
(telephone) or (202) 366-3765 (fax).

SUPPLEMENTARY INFORMATION:

Outline of Preamble

I. Background and Purpose
II. Summary of Existing Requirements
III. Need for Rule Revision
IV. Overview of the Proposed Rule
V. Section by Section Analysis
VI. Regulatory Process Matters
    a. Executive Order 12866
    b. Departmental Significance
    c. Regulatory Flexibility Act
    d. Unfunded Mandates Reform Act of 1995
    e. Executive Order 13132 (Federalism Assessment)
    f. Paperwork Reduction Act

I. Background and Purpose

    In response to congressional concern regarding the potential for 
catastrophic accidents and security incidents on rail fixed guideway 
systems, the Intermodal Surface Transportation Efficiency Act of 1991 
(ISTEA) added section 28 to the Federal Transit Act (codified at 49 
U.S.C. 5330). This section mandated that FTA issue a rule creating a 
State-managed oversight program for rail transit safety and security.
    On June 25, 1992, FTA issued an Advance Notice of Proposed 
Rulemaking (ANPRM) soliciting public comment on a range of issues to be 
addressed in the Notice of Proposed Rulemaking (NPRM). 57 FR 28572. On 
December 9, 1993, FTA published that NPRM at 58 FR 64855. The final 
rule, 49 CFR part 659, ``Rail Fixed Guideway Systems; State Safety 
Oversight,'' was issued on December 27, 1995, at 60 FR 67034; it is 
also referred to as the state safety oversight rule or Part 659. The 
safety requirements for Part 659 went into effect on January 1, 1997 
and the security requirements went into effect one year later.
    When FTA issued its final rule, only five (5) States maintained 
provisions for safety oversight of rail fixed guideway systems. Today, 
22 States and the District of Columbia have developed and implemented 
state safety oversight programs affecting 36 rail transit agencies. It 
is projected that over the next decade, an additional seven (7) States 
and as many as 16 new start rail transit agencies may be affected by 
Part 659.
    Since Part 659 created a community of oversight agencies where 
previously few existed, the initial goal of the rulemaking was to 
ensure that States were provided with sufficient authority to establish 
programs that met the legislation's minimum requirements. FTA 
recognized that it would take some time to determine if Part 659 
requirements met this goal.
    Now, after more than six years of experience in implementing Part 
659 and evaluating its performance, FTA believes that significant 
changes have been identified and are warranted to improve the program. 
The proposed rule, presented here, conveys FTA's recommendations to 
clarify State authorities and rail transit agency responsibilities 
under the statute.

II. Summary of Existing Requirements

    Section 5330 of Title 49, U.S.C. applies ``only to States that have 
rail fixed guideway mass transportation systems not subject to 
regulation by the Federal Railroad Administration.'' In its 
implementing regulations, FTA defined a rail fixed guideway system as,

any light, heavy or rapid rail system, monorail, inclined plane, 
funicular, trolley, or automated guideway that is included in FTA's 
calculation of fixed guideway route miles or receives funding under 
FTA's formula program for urbanized areas and is not regulated by 
the Federal Railroad Administration (FRA). 49 CFR 659.5.

    Each State with a rail fixed guideway system operating within its 
borders is required to designate an oversight agency with sufficient 
legal authority and technical capacity to implement Part 659 
requirements. The designated oversight agency is required to develop a 
program standard that defines the relationship between the oversight 
agency and the rail fixed guideway system. The program standard must, 
at a minimum, comply with the American Public Transportation 
Association's (APTA) Manual for the Development of Rail Transit System 
Safety Program Plans (APTA Manual) and must include specific provisions 
addressing the personal security of passengers and employees.
    The oversight agency must review and approve, in writing, the rail 
fixed guideway system's system safety program plan and system security 
plan. After these initial approvals, the

[[Page 11219]]

oversight agency must review and approve, as necessary, updates to the 
rail fixed guideway system's plans.
    The oversight agency must require each rail fixed guideway system 
to report the occurrence of accidents and unacceptable hazardous 
conditions within a specified period of time and must investigate such 
events in accordance with established procedures. The oversight agency 
may conduct its own investigation, use a contractor to conduct an 
investigation, or review and approve the investigation conducted by the 
rail fixed guideway system or the National Transportation Safety Board 
(NTSB), or use a combination of these methods.
    The oversight agency must require the rail fixed guideway system to 
implement corrective action plans, as appropriate, to minimize, control 
within a specified period, correct, or eliminate hazardous conditions 
identified during investigations. The oversight agency must monitor 
implementation of these plans.
    The oversight agency must conduct an on-site safety review of the 
rail fixed guideway system's implementation of its system safety 
program plan and system security plan at least every three years. Once 
this review is complete, the oversight agency must issue a report 
containing its findings and recommendations, an analysis of the rail 
fixed guideway system's safety and security program, and a 
determination of whether it should be updated.
    The oversight agency must require the rail fixed guideway system to 
conduct an internal safety audit process that complies with Checklist 
Number 9 of the APTA Manual. In addition, the rail fixed guideway 
system must submit an annual report to the oversight agency documenting 
the results of internal safety audit process.
    Lastly, the oversight agency must submit three types of reports to 
FTA: an Initial Submission; an Annual Submission, and a Periodic 
Submission.
    If a State has not met these requirements or has not made adequate 
efforts to comply with them, the Secretary of the U.S. Department of 
Transportation may withhold up to five percent of a fiscal year's 
apportionment under FTA's formula program for urbanized areas (formerly 
section 9) attributable to the State or an affected urbanized area in 
the State.
    A side-by-side table of the current rule and the proposed rule is 
available on the FTA Office of Safety and Security home page at http://transit-safety.volpe.dot.gov.

III. Need for Rule Revision

    Since the rule's requirements went into effect, FTA has monitored 
oversight agency compliance. During this time, FTA has worked with 
representatives from oversight agencies, rail transit agencies, FRA, 
NTSB, and APTA to identify areas in which the program, or the rule 
itself, can be strengthened to ensure effective safety and security 
oversight at our nation's rail transit properties, affected by Part 
659.
    In this activity, FTA utilized five distinct methods from which to 
evaluate State compliance with Part 659 requirements and to identify 
areas in which the rule could be improved. Each of these methods, and 
its specific findings for the rule revision, is described below:
    (1) FTA's audit program for Part 659;
    (2) FTA's State Safety Oversight Program Annual Meetings;
    (3) Quarterly State Safety Oversight Program Teleconferences;
    (4) Working Groups for oversight agencies and rail transit agencies 
to discuss the performance of the program and make recommendations to 
FTA for improvements; and
    (5) Coordination with the NTSB.
    Audit Program. In 1998, FTA initiated its audit program for state 
safety oversight agencies. Since that time, FTA has conducted 17 audits 
that have assisted FTA in determining State compliance with the rule as 
well as providing meaningful recommendations for strengthening the 
state safety oversight program. Audit findings indicate that: (1) 
Oversight agencies have difficulty determining their role and authority 
in the management of hazards at the rail transit agencies within their 
jurisdiction; (2) the APTA Manual does not currently provide a clear 
listing of specific authorities required to manage oversight program 
provisions; (3) States have difficulty requiring and enforcing the 
performance of internal safety audits at rail transit agencies; and (4) 
States and rail transit agencies have difficulty ensuring that program 
plans remain up-to-date.
    Annual Meetings. FTA initiated its annual meetings in 1997 to 
discuss elements of the rule in detail; provide training for oversight 
personnel in key areas, such as hazard identification and resolution 
and the conduct of three-year safety reviews; promote coordination with 
other federal programs; support working sessions to identify key 
concerns in rule implementation; and present and discuss findings from 
its audit program. During the last three annual meetings, States have 
provided FTA with a listing of their recommendations regarding FTA 
activity in the upcoming year. Typical State needs include training, 
funding, and increased coordination with FRA, NTSB, and FTA's Project 
Management Oversight Program.
    Quarterly Teleconferences. In 2001, FTA began a quarterly 
teleconference series with oversight agencies to update oversight 
agencies on FTA activities, to discuss emerging safety and security 
issues, and plan for the year's annual meeting.
    Working Groups. In 2002, FTA initiated a series of monthly 
teleconference working sessions with representatives from oversight 
agencies and rail transit agencies. These teleconferences provide a 
forum for key stakeholders to present their program recommendations to 
FTA. The oversight agencies selected seven members to represent the 
State perspective. APTA worked with the rail transit community to 
identify five members for its group. Findings from the teleconference 
calls include: (1) Both oversight agency and rail transit agency 
representatives requested that FTA address the need for a process-based 
requirement for the hazard management process; (2) both oversight 
agency and rail transit agency representatives requested greater 
consistency with other federal agencies and programs in accident 
notification and investigation thresholds; (3) oversight agency 
representatives requested that FTA remove the APTA Manual incorporation 
by reference and provide a listing of specific authorities required for 
the management of state safety oversight programs; and (4) some 
oversight agency representatives suggested greater oversight for safety 
prior to passenger operations.
    National Transportation Safety Board. In September 2002, the NTSB 
issued recommendations to FTA's Administrator (R-02-18 and -19), 
stating that the APTA Manual, published on August 20, 1991, does ``not 
contain the necessary specific guidance for assessing the effectiveness 
of rules compliance programs; as a result, the guidelines are not 
effective tools for regulatory authorities or transit agencies.'' The 
NTSB recommended that rail transit agencies should adopt, in their 
system safety program plans, specific standards covering rules 
compliance and efficiency test programs. NTSB also made recommendations 
to APTA to update the APTA Manual to address this concern, and to FTA 
to adopt the updated APTA Manual.
    Over the last six years, FTA has also developed technical 
assistance material to address concerns identified by FTA,

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the States, and the rail transit agencies. FTA has published technical 
advisories, safety and security newsletters, and guidelines to address 
implementation of rule requirements and successful practices. While the 
guidance has benefited oversight agency and rail transit agency program 
implementation, FTA recognizes that a number of the identified issues 
must be resolved by regulation. It is based on the above findings that 
FTA proposes revisions to the existing state safety oversight rule.
    The purpose of this revision is to improve the performance of the 
state safety oversight program and effect the following outcomes: (1) 
Enhanced program efficiency and authority; (2) increased responsiveness 
to recommendations and emerging safety and security issues; (3) 
improved consistency in the collection and analysis of accident causal 
factors through increased coordination with other Federal reporting and 
investigation programs; and (4) improved performance of the hazard 
management process. In addition, the proposed rule will clarify FTA's 
position with regard to oversight management objectives and streamline 
current reporting requirements including a move from paper reporting to 
electronic reporting. Finally, the proposed rule would address 
heightened concerns for rail transit security and emergency 
preparedness.

IV. Overview of the Proposed Rule

    At the time when Part 659 was published, FTA believed strongly that 
in order to establish a nation-wide baseline standard for safety, it 
was necessary to incorporate the APTA Manual by reference. FTA has 
learned in the last six years, however, that while the APTA Manual 
still provides a valuable tool for rail transit agencies in their 
development of system safety program plans, it does not assist in State 
compliance with rule requirements. To address this situation, the 
proposed rule provides minimum requirements that should support the 
development of an oversight program and guide its oversight activities. 
These requirements are located in Sec.  659.13 of the proposed rule.
    Removing reference to the APTA Manual also requires that FTA 
identify minimum requirements to be addressed by the rail transit 
agency in its system safety program plan. In preparing these 
requirements, FTA used the APTA Manual and materials developed by 
oversight agencies. These requirements are located in Sec.  659.15 of 
the proposed rule.
    In the proposed rule, the oversight agency would require the rail 
transit agency to develop its system safety program plan and system 
security plan as separate documents. All oversight agency reviews of 
the system security plan would occur on-site at the rail transit 
agency, or according to another procedure developed by the rail transit 
agency in its system security plan. These requirements are located in 
Sec.  659.17 of the proposed rule.
    The proposed rule would require the oversight agency to oversee an 
annual review by rail transit agency of its system safety program plan 
and system security plan and modify or update as necessary. The 
proposed regulation would require the oversight agency to review and 
approve any modification or update. These changes are located Sec.  
659.19 of the proposed rule.
    The proposed rule would stipulate that the rail transit agency 
conduct on-going internal safety and security reviews of its safety and 
security programs and notify the oversight agency at least 30 days 
prior to its conduct. The proposed regulation would require the State 
to review and approve an annual report on rail transit agency internal 
safety and security reviews and require the rail transit agency 
executive director or general manager to submit a letter certifying 
rail transit agency compliance with its own system safety program plan 
and system security plan. These requirements are located in Sec.  
659.21 of the proposed rule.
    The proposed rule would clarify the State's role in the oversight 
of hazard management activities performed by the rail transit agency. 
The current rule specifies use of a hazard resolution matrix to 
categorize hazards. Those hazards categorized as unacceptable are to be 
investigated and culminate in the development to corrective action 
plans to mitigate the unacceptable hazardous condition. The proposed 
rule would clarify that hazards are managed using a hazard 
identification and resolution process, similar to that prescribed in 
the APTA Manual. The proposed rule would outline the process to be 
developed by the rail transit agency that guides its hazard 
identification and resolution activities, as well as coordination with 
the oversight agency. These requirements are located in Sec.  659.25 of 
the proposed rule.
    The proposed rule also addresses inconsistencies in accident 
notification and investigation thresholds between the state safety 
oversight program and FTA's National Transit Database (NTD) reporting 
thresholds, and the NTSB's notification and investigation thresholds. 
The proposed rule would allow FTA to standardize accident causal 
information obtained through the state safety oversight program by 
ridership and accident data reported by rail transit agencies to the 
NTD. The increased consistency would create a direct relationship 
between reported accidents, identified causal factors, and corrective 
actions and support consistent analysis of industry performance and 
needs. Moreover, the proposed rule would support consistency between 
those accidents requiring investigation under the state safety 
oversight program and those investigated by the NTSB. These 
requirements are located in Sec.  659.27, Sec.  659.29, and Sec.  
659.31 of the proposed rule.

V. Section-by-Section Analysis

    In this section, FTA discusses the differences between the existing 
rule and the proposed rule. In addition to seeking comments on the 
proposed rule overall, FTA also requests comments on the specific 
issues indicated below.

Definitions (Sec.  659.5)

    In the existing rule, FTA identifies thresholds for accident 
notification and investigation in the rule's definitions. In the 
proposed rule, FTA has opted to incorporate these thresholds directly 
in their applicable sections (Sec.  659.27--Notification and Sec.  
659.29--Investigations). FTA requests that comments made on these 
thresholds be directed at the appropriate sections of the proposed 
rule.
    To clarify where events requiring notification and investigation 
may occur, FTA has added definitions for ``rail transit vehicle'' and 
``rail-transit controlled property.'' Likewise, to identify who may be 
affected by these events, FTA has added a definition of ``individual.''
    FTA has replaced the definition of hazardous condition with the 
term ``hazard'' and proposes a definition that is more widely used in 
the state safety oversight program and industry. FTA proposes to strike 
the definition of ``unacceptable hazardous condition'' in the current 
rule and replace this categorization threshold with a proposed hazard 
management process, specified in section Sec.  659.25.
    FTA has added a definition of ``corrective action plan'' and 
``system security plan'' to clarify existing requirements, and has 
revised its definition of ``system safety program standard'' and 
``system safety program plan'' to reflect changes to the proposed rule 
regarding the removal of the incorporation by reference of the APTA 
Manual.

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    To address on-going questions resulting from the existing rule's 
use of the term ``revenue operations,'' FTA proposes the addition of 
the term ``passenger operations.'' This definition would clarify the 
point in time when approved oversight agency and rail transit agency 
programs must be in effect.
    The proposed rule would modify the definition of rail fixed 
guideway system by clarifying that the rule applies to systems that are 
included in FTA's calculation of fixed guideway route miles to receive 
funding under the formula program for urbanized areas (49 U.S.C. 5336). 
FTA also added a caveat to address a system's intent to be included in 
FTA's calculation of fixed guideway route miles to receive funding 
under FTA's formula program for urbanized areas (49 U.S.C. 5336). With 
this change, States with a rail transit project that is funded without 
federal monies but expects to receive operating funds would be covered 
by the program at the initiation of passenger operations. Finally, in 
the revised rule, FTA proposes to use the term ``rail transit agency'' 
to refer to an entity that operates a rail fixed guideway system.

Designation of Oversight Agency (Sec.  659.9)

    FTA's proposed rule contains several changes that would affect the 
existing requirement for a State to designate an oversight agency for 
each rail transit agency affected by Part 659 within its jurisdiction. 
FTA is basing these proposed changes on lessons learned as the state 
oversight community has grown. This proposed section would only apply 
to States with rail fixed guideway systems in their jurisdiction that 
have not designated an oversight agency by the date of the publication 
of the final rule.
    Part 659 currently stipulates that States designate an agency ``to 
serve as the oversight agency and to implement the requirements of 
[Part 659].'' During the rulemaking effort for the current rule, FTA 
interpreted this requirement as meaning that the State was not required 
to designate an oversight agency during the planning, design, and 
construction of a new start rail system. As explained in the preamble 
to the current rule, FTA believes that the language of section 5330 
``covers only operating systems or systems about to commence 
operations.''
    Since 1998, FTA has worked with Utah, Wisconsin, and Puerto Rico to 
ensure both the designation of oversight agencies for new start rail 
projects and compliance with rule requirements at the time of passenger 
operations. From this experience, FTA has learned the importance of 
clarifying the designation time frame for States with new start systems 
``about to commence operations.'' Without specific authority to require 
and approve a designation submission that includes a schedule for 
ensuring all program requirements are met by the time of operations, it 
is difficult for FTA to ensure that sufficient time is provided to 
address and resolve program concerns prior to passenger operations.
    The proposed rule, therefore, would require that the State's 
designation, at a minimum, coincides with the execution of any grant 
between FTA and the rail transit agency for the new start project. FTA 
anticipates that, in most cases, this requirement will correspond to 
execution of a Full Funding Grant Agreement for a new start rail 
project.
    Designation means that the Governor for the affected State would 
identify an agency, and a point of contact from that agency, that will 
likely assume oversight responsibility for the rail transit agency. 
Designation, for purposes of the proposed rule, may occur prior to the 
passage of enabling legislation or other activities that may be 
necessary for the oversight agency to assume its responsibilities for 
implementing Part 659 requirements.
    Upon designation, the State would have 60 days to provide FTA with 
a designation submission. The designation submission would include (1) 
identification of the agency most likely to provide oversight; (2) a 
description of its current authorities relative to rail transit safety 
and security oversight; (3) identification of any potential conflicts 
of interest between the designated agency and the rail transit agency 
based on financial or shared management responsibilities; (4) a point 
of contact within the designated agency to coordinate with FTA 
regarding the development of the program, and (5) a proposed schedule 
detailing major milestones to ensure implementation of the State's 
oversight program with revenue operations of the rail transit agency.
    This proposal would formalize a practice that is already in place 
and described in FTA's Compliance Guidelines for States with New Starts 
Projects. Currently, FTA asks that the Governor of each State affected 
by Part 659 to request designation of the oversight agency, as well as 
a point of contact within the State-designated agency with whom FTA may 
work to establish a line of communication as the agency develops its 
oversight program. It is in working with the State point of contact 
that FTA is able to provide technical assistance and outreach to 
support the development of the State's oversight program. Timely 
designation of the oversight agency also provides FTA with the 
opportunity to formally invite State representatives to participate in 
new start system meetings, held under FTA's Project Management 
Oversight Program, to assess quarterly the progress of capital projects 
subject to Part 659.
    These changes to the rule's designation provisions also enhance 
consistency with two other FTA programs. FRA and FTA published Shared 
Use of the Tracks of the General Railroad System by Conventional 
Railroads and Light Rail Transit Systems. 65 Fed. Reg. 42525 (July 10, 
2000). This joint statement addresses safety issues related to light 
rail transit operations that plan to take place on the tracks of the 
general railroad system, and the role of the state safety oversight 
program in supporting the rail transit agency's waiver process with 
FRA.
    Also, in a recent revision to FTA's Full Funding Grant Agreement 
Guidance (FTA Circular 5100.1A, issued on December 5, 2002), FTA now 
requires greater coordination between FTA's Project Management 
Oversight Program and the state safety oversight program. New start 
projects receiving a $25 million or greater share of federal funds must 
include a Safety and Security Management Plan as part of the Project 
Management Plan used to evaluate project progress and authorize the 
release of funds. A component of this plan includes implementation 
schedules for meeting State Safety Oversight requirements and waiver 
applications to FRA for transit operations sharing corridors with the 
general railroad system. These submissions must be coordinated with the 
State and the designated oversight agency to ensure the continued 
receipt of FTA funds.
    To support early state safety oversight program development, FTA 
makes funds available to support the designation of an oversight agency 
and the development of the oversight program under FTA's interpretation 
of Section 5309 of title 49, U.S.C. (FTA Guidance on Eligibility of 
Start-up Costs, September 5, 1997). State oversight agencies are able 
to receive funding from the rail transit agency, so long as the 
oversight agency state safety oversight expenses are incurred during 
the pre-revenue service phase of the capital project, are reasonable, 
and directly support activation and pre-revenue operations of the new 
service implemented under a capital grant.

[[Page 11222]]

    The proposed rule would also address those new start projects that 
are not funded by FTA grants, but intend to eventually receive funding 
under FTA's formula program for urbanized areas (49 U.S.C. 5336). For 
these projects, when an entity declares its intent to FTA to receive 
formula funding (typically conveyed through the State transportation 
planning process), an oversight agency must be designated. Again, 60 
days is provided for the State to make its designation submission to 
FTA.
    For rail transit agencies that operate, or will operate, in more 
than one State, the affected States may each designate an agency of the 
State to implement state safety oversight requirements, or may agree to 
designate one agency of one State, or an agency representative of both 
States. Whatever designation determination is made by the affected 
States, a single program standard, adopted by each State, would be 
developed to implement state safety oversight program requirements. In 
this manner, the rail transit agency would not be unduly burdened with 
requirements from two or more States, but would be able to develop a 
seamless program that is equally applicable in all affected States.
    For commenters addressing this section, FTA specifically requests 
information regarding (1) the amount of time required to prepare the 
designation submission described in this section; and (2) any 
additional requirements that may be appropriate to support coordination 
with FTA's Project Management Oversight Program and FRA's Joint Policy 
on Shared Use Track Systems.

System Safety Program Standard (Sec.  659.13)

    The current rule requires oversight agencies to develop and adopt a 
program standard that, at a minimum: (1) Complies with the APTA Manual, 
and (2) requires the rail transit agency to address the personal 
security of its passengers and employees.
    The proposed rule would remove the reference to the APTA Manual 
from the requirements for a state safety oversight system safety 
program standard. FTA believes that this change is necessary for 
several reasons.
    First, to provide guidance for a dynamic and growing program, FTA, 
working through the established public comment process, needs the 
ability to change, modify, or revise the minimum requirements of the 
program standard. Reliance on the 1991 version, or subsequent versions, 
of the APTA Manual does not provide this capability because FTA does 
not manage this document.
    Second, the APTA Manual provides guidance for developing a rail 
transit agency system safety program plan but does not provide 
guidelines for how a State agency should oversee a rail transit agency 
safety and security program or meet state safety oversight 
requirements. While this situation was also the case when FTA issued 
the current rule in December 1995, the state safety oversight community 
had yet to be created (only five of the existing 22 oversight agencies 
had been designated). At that time, based on public comment, it was 
appropriate to reference a known industry standard rather than to 
attempt to create a new one for State organizations that had not yet 
been established.
    Six years later, however, a more mature and experienced oversight 
community has expressed concerns with using the APTA Manual as the 
basis the program standard. In outreach sessions, oversight agencies 
have requested that, instead of the APTA Manual, FTA provide a specific 
list of minimum requirements for the program standard which can be 
referenced in State enabling legislation, administrative code, 
executive directives, and other means through which responsibility and 
authority is conveyed to the oversight agency. To this end, in the 
proposed rule, FTA has prepared a list of ten (10) elements that would 
be included in a program standard, including minimum requirements that 
would address oversight agency authority and specific interfaces with 
the rail transit agency. The ten sections identified in the proposed 
rule correspond closely to the organization and content already used by 
many States in their standards--offering a tailored list of authorities 
and activities required for oversight programs. FTA believes that this 
modified approach will strengthen and clarify the enforceability of the 
program and provide minimum requirements that focus on the management 
of the State's oversight program.
    It is important to note that in removing the program's 
incorporation by reference of the APTA Manual, FTA is not intending to 
lessen the importance of this document to the rail transit industry. To 
the contrary, FTA believes the APTA Manual provides a valuable resource 
for rail transit agencies and supports their compliance with the Part 
659 requirement for system safety program plan development. Further, 
FTA plans to collaborate with APTA to ensure that future implementation 
guidelines are a product of a partnership between FTA, APTA, oversight 
agencies, and rail transit agencies. FTA urges APTA to consider this 
proposed rule in its subsequent revisions to the APTA Manual.

System Safety Program Plan (Sec.  659.15)

    The current rule stipulates that the oversight agency must require 
the rail transit agency to develop and implement a written system 
safety program plan that complies with the oversight agency's program 
standard. The proposed rule would maintain this requirement, though 
instead of the APTA Manual, the proposed rule would identify 21 
elements that must be included in the rail transit agency's system 
safety program plan.
    These 21 elements are derived from the industry's experience with 
both the APTA Manual and the state safety oversight program. A rail 
transit agency relying on the current APTA Manual to develop its system 
safety program plan will have successfully addressed the 21 minimum 
elements identified by FTA in the proposed rule, provided the rail 
transit agency makes modifications to address specific changes proposed 
in the revised rule. These changes follow.
    (1) Develop a hazard management process in compliance with hazard 
management process (Sec.  659.25) of the proposed rule--modifying the 
rail transit agency's description of this process prepared in response 
to APTA Manual's Checklist Number 7 to include coordination with the 
oversight agency.
    (2) Provide additional detail on the processes used by the rail 
transit agency to address safety in system modifications and safety 
certification for major projects--modifying the rail transit agency's 
description of this process prepared in response to APTA Manual's 
Checklist Number 15.
    (3) Describe accident notification, investigation and corrective 
action management processes in keeping with the proposed rule 
requirements (Sec.  659.27 and Sec.  659.29)--modifying the rail 
transit agency's description of this process prepared in response to 
APTA Manual's Checklist Number 8 and the current rule.
    (4) Describe the process by which the rail transit agency will 
evaluate its emergency management program, such as an annual field 
exercise. FTA strongly believes that in order to address heightened 
concerns from recent events, an annual field exercise would support a 
rail transit agency's evaluation of its level of preparedness for an 
emergency event. In the last two years, FTA has provided funding to 
support the conduct of emergency preparedness

[[Page 11223]]

drills at the majority of the rail transit agencies around the nation. 
Lessons learned from this activity indicate its value in assuring 
preparedness and promoting integration of local responders into rail 
transit agency emergency preparedness programs. This represents a 
modification to the rail transit agency's description of this process 
prepared in response to APTA Manual's Checklist Number 14.
    (5) Document an internal safety and security review process which 
addresses greater coordination with the oversight agency regarding 
notification of reviews, oversight agency review of checklists and 
procedures, and submission of an annual report to the oversight 
documenting findings and status of recommendations, as specified in 
Sec.  659.21 of the proposed rule--modifying the rail transit agency's 
description of this process prepared in response to APTA Manual's 
Checklist Number 9;
    (6) Provide additional detail on the employee safety program (to 
include employee/contractor right-of-way safety)--modifying the rail 
transit agency's description of these processes prepared in response to 
APTA Manual's Checklist Numbers 19 and 22.
    (7) Identify the specific requirements to address rail transit 
agency procedures for rules compliance and performance testing to 
assess employee knowledge of/compliance with operating rules--modifying 
the rail transit agency's description prepared in response to APTA 
Manual's Checklist Number 12.
    FTA proposes this last change to address recommendations issued to 
FTA's Administrator on September 26, 2002 by the NTSB (R-02-18 and -
19). In these recommendations, the NTSB concluded that the APTA Manual, 
published on August 20, 1991, does ``not contain the necessary specific 
guidance for assessing the effectiveness of rules compliance programs; 
as a result, the guidelines are not effective tools for regulatory 
authorities or transit agencies.'' The NTSB recommended that rail 
transit agencies should adopt, in their system safety program plans, 
specific standards covering rules compliance and efficiency test 
programs. NTSB also made recommendations to APTA to update the APTA 
Manual to address this concern, and to FTA to adopt the updated APTA 
Manual. Since FTA's revised rule proposes not to reference the APTA 
Manual in its program, FTA believes that it is important to address the 
NTSB recommendation regarding performance testing in the minimum 
requirements for the system safety program plan.

System Security Plan (Sec.  659.17)

    To address the need to protect security information from public 
disclosure, FTA believes that it is important to make certain that the 
system safety program plan and the system security plan are separate 
documents with different protocols for review and management. The 
current rule allows the two plans to be combined into a single system 
safety and security program plan, and relies on the submission of these 
documents directly to the oversight agency via hard or electronic copy.
    FTA is proposing a change to this practice which, first, would call 
for a separate system security plan, and, second, ensure that this plan 
and its supporting procedures would only be reviewed on-site at the 
rail transit agency, or according to some other procedure specified by 
the rail transit agency in its system security plan. FTA believes that 
recent events resulting from the September 11, 2001, attacks and 
potential changes in security policy that may be promulgated by the 
Transportation Security Administration warrant these modifications.
    FTA considered the requirement for the designation of ``transit 
security sensitive information'' and the creation of procedures for the 
management and storage of this type of information at the oversight 
agency. However, FTA decided that the inconvenience of requiring on-
site review of a rail transit agency's system security plan and 
supporting procedures was a less complex regulatory matter than 
attempting to create new policies for classifying and managing specific 
types of information at state agencies.
    Therefore, FTA's proposed rule would identify minimum requirements 
for the system security plan, and specify that the State must require 
the rail transit agency to make available to the oversight agency, for 
review and approval, its system security plan and accompanying 
procedures. The oversight agency would then conduct its review of the 
system security plan and supporting procedures on-site at the rail 
transit agency, or following some other procedure specified by the rail 
transit agency in its system security plan and approved by the 
oversight agency. Throughout this process, the transit system and the 
oversight agency must comply with all regulations related to the non-
disclosure of sensitive information, including the Transportation 
Security Administration's regulations at 49 CFR Part 1520.

Rail Transit Agency Annual Review of Its System Safety Program Plan and 
System Security Plan (Sec.  659.19)

    FTA concluded from its audit program that the current rule does not 
provide sufficient guidance with regard to a recommended schedule for 
rail transit agency review and revision of its system safety program 
plan and system security plan. FTA found that rail transit agency 
reviews varied between one and three years and created situations where 
a rail transit agency may be implementing procedures or practices that 
are not reflected in its system safety program plan or system security 
plan. To address this potential for out-of-date plans, the proposed 
regulation would specify that the oversight agency must require the 
rail transit agency to conduct an annual review of its system safety 
program plan and system security plan. This review may simply result in 
the determination that no update is necessary in either plan, or it may 
address specific issues, such as the need for revised organization 
charts or roles and responsibilities matrices, or it may result in more 
substantive changes to one or both plans.
    In the event that the system safety program plan is modified, the 
rail transit agency would be required to submit the modified plan and 
any subsequently modified procedures to the oversight agency for review 
and approval. Upon approval of the plan, the oversight agency would be 
required to issue a formal letter of approval to the rail transit 
agency.
    In the event the rail transit agency's system security plan is 
modified, the rail transit agency would be required to make available 
to the oversight agency for on-site review at the rail transit agency, 
the modified plan and accompanying procedures. Upon approval of the 
plan, the oversight agency would be required to issue a formal letter 
of approval to the rail transit agency.

Rail Transit Agency Internal Safety and Security Reviews (Sec.  659.21)

    Results from FTA's audit program and outreach with both oversight 
agencies and rail transit agencies indicate that the internal safety 
audit process requirement specified in the APTA Manual (Checklist 
Number Nine), and referenced in the current rule, has been perhaps the 
most challenging element of the program. Rail transit agencies have 
struggled with obtaining sufficient resources and management support to 
ensure that all elements identified in the APTA Manual are reviewed 
consistently

[[Page 11224]]

over a three-year timeframe. State oversight agencies have expressed 
the difficulty of obtaining schedules, checklists and procedures by 
which the rail transit agency plans to conduct these reviews. State 
oversight agencies have also indicated that the indirect authority 
provided by the current rule, which requires only an annual report 
documenting the rail transit agency's performance of the internal 
safety audit process, makes it difficult for them to address this issue 
more actively with the rail transit agencies.
    FTA always intended that oversight agencies would play an important 
role in ensuring that the internal safety audit process identified by 
the rail transit agencies in their system safety program plans and 
system security plans is carried out. However, FTA agrees that in 
practice, the current rule does not sufficiently support oversight 
agency authority to monitor implementation of this program in an on-
going manner.
    To address these concerns, FTA proposes revising the existing rule 
to provide specific requirements that must be carried out by the 
oversight agency with regard to this process. To this end, FTA proposes 
that oversight agencies would require the rail transit agencies within 
their jurisdiction to develop a process for the performance of on-going 
internal safety and security reviews. This process would be included in 
the system safety program plan (for safety-related items) and the 
system security plan (for security-related items), and be reviewed and 
approved by the oversight agencies.
    Further, the proposed rule would require that this process must: 
(1) Describe the method used by the rail transit agency to determine if 
all identified elements of its system safety program plan and system 
security plan are performing as intended; and (2) ensure that all 
elements of the system safety program plan and system security plan are 
reviewed in an on-going manner and completed over a three-year cycle.
    This process must also ensure that the rail transit agency would 
notify the oversight agency at least thirty (30) days prior to the 
conduct of scheduled internal safety and security reviews, and that the 
rail transit agency would submit to the oversight agency, at the time 
of notification, any checklists or procedures it will use during the 
review. Any checklists or procedures the rail transit agency would use 
for the security portion of its review must be made available to the 
oversight agency for on-site review. At the request of the rail transit 
agency, the oversight agency may participate in these reviews, though 
the proposed rule would not require their participation.
    In the proposed rule, the oversight agency must require the rail 
transit agency to submit an annual report documenting internal safety 
and security review activities and the status of subsequent findings 
and recommendations. The security portion of this report would only be 
made available for on-site review at the rail transit agency. The 
annual report would be accompanied by a formal letter of certification 
signed by the rail transit agency's executive director or general 
manager indicating that the rail transit agency is in compliance with 
its system safety program plan and system security plan. The oversight 
agency would be required to formally review and approve this report.
    FTA believes that this amended process will greatly improve the 
coordination between the rail transit agencies and the oversight 
agencies regarding this element of the program.

Oversight Agency Safety and Security Reviews (Sec.  659.23)

    The current rule requires that, at least every three years, the 
oversight agency must conduct an on-site review of the rail transit 
agency's implementation of its system safety program plan and system 
security plan. It also requires that the oversight agency prepare and 
issue a report containing findings and recommendations resulting from 
that review, which, at a minimum, must include an analysis of the 
efficacy of the system safety program plan and a determination of 
whether it should be updated. Based on the results of this on-site 
review, the oversight agency would require the rail transit agency to 
develop corrective action plans to address review findings.
    Both oversight agencies and rail transit agencies have expressed 
general satisfaction with these reviews. However, those States that 
conduct these reviews in an on-going manner over the three-year period 
(rather than as a single review) requested that FTA clarify their 
authority to conduct the reviews in this manner. Therefore, this 
section has been amended to specify that the rail transit agency's 
system safety program plan may be reviewed in an on-going manner, over 
the three-year timeframe, or in a comprehensive on-site review at the 
rail transit agency, occurring once every three years.

Hazard Management Process (Sec.  659.25)

    In the revised rule, FTA is proposing that the oversight agency 
require the rail transit agency to develop a process to identify and 
resolve hazardous conditions during operation, system extensions, 
modifications, or changes. This process would replace the current 
requirements for the notification and investigation of ``unacceptable 
hazardous conditions,'' and ensure that the oversight agency has an on-
going role in the rail transit agency's hazard identification and 
resolution process. FTA believes that such a role would enhance the 
program's capability to monitor the identification and resolution of 
hazards at the rail transit agency.
    As proposed in the revised rule, the oversight agency must require 
the rail transit agency to develop, as part of the system safety 
program plan, a hazard management process to be reviewed and approved 
by the oversight agency. This process must, at a minimum: (1) Define 
the rail transit agency's approach to hazard management and the 
implementation of an integrated system-wide hazard resolution process; 
(2) specify the sources of, and the mechanisms to support, the on-going 
identification of hazards; (3) define the process by which identified 
hazards will be evaluated and prioritized for elimination or control; 
(4) identify the mechanism used to track to resolution the identified 
hazard(s); (5) define minimum thresholds for the notification and 
reporting to oversight agencies of hazardous conditions; and (6) 
specify the process by which the rail transit agency will provide on-
going reporting of hazard resolution activities to the oversight 
agency.
    The proposed regulation would not require industry-wide conformance 
to a single hazard management methodology. Rail transit agencies may 
propose methods that are specified in the APTA Manual or in military or 
other system safety references, or they may wish to limit application 
of matrix-based assessments in favor of trend analysis or other tools. 
Whatever approach is ultimately selected by the rail transit agency, it 
must be accurately identified and documented in the hazard management 
process, submitted as part of the system safety program plan, and 
reviewed and approved by the oversight agency.
    Likewise, specific mechanisms for the on-going communication of the 
results of the hazard management process with the oversight agencies 
would be left open, to be determined by the specific rail transit 
agency and oversight agency. Some rail transit agencies may wish to 
invite their oversight agencies to monthly or quarterly meetings of 
Hazard Resolution Committees and to document hazard management activity 
in meeting minutes or notes from these

[[Page 11225]]

sessions. Other agencies may propose delivering a specific report on a 
monthly, quarterly or semi-annual basis to the oversight agency. Still 
other rail transit agencies may provide oversight agencies with access 
to existing hazard management databases and reports, or may conduct 
monthly teleconferences. FTA encourages the rail transit agencies and 
the oversight agencies, whenever possible, to take advantage of 
existing hazard management tools and processes to document and share 
information.
    This process would ensure a continuous dialogue regarding hazard 
management between the oversight agency and the rail transit agency. 
Further, the hazard management process would define the sources from 
which rail transit agencies will identify and evaluate potential 
hazards as well as the notification, investigation and corrective 
action requirements implemented by the rail transit agency and reviewed 
and approved by the oversight agency.
    FTA believes that this approach will provide oversight agencies 
with an improved understanding of this process, as applied in the rail 
transit industry, and a greater context from which to assess rail 
transit agency hazard evaluation processes and corrective action plans.

Notification (Sec.  659.27)

    The current rule stipulates that the oversight agency must require 
the rail transit agency to report accidents and unacceptable hazardous 
conditions within a specified period of time determined by the 
oversight agency. Upon notification of these events, oversight agencies 
must investigate and require, review and approve corrective action 
plans, as appropriate, to address investigation findings. In the 
current rule, ``accidents'' include any events, if as a result: an 
individual dies; an individual suffers bodily injury and immediately 
receives medical treatment away from the scene of the accident; or a 
collision, derailment, or fire causes property damage in excess of 
$100,000.
    ``Unacceptable hazardous conditions'' include those hazardous 
conditions determined to be unacceptable using the APTA Manual, Hazard 
Resolution Matrix (Checklist Number 7). As explained in the section 
above, the proposed rule replaces the requirements for ``unacceptable 
hazardous conditions'' notification and investigation with a hazard 
management process (Sec.  659.25).
    For accident notification and investigation, results from FTA's 
audit program and outreach with both oversight agencies and rail 
transit agencies indicate that the current rule's thresholds for 
accident notification are not consistent with other notification and 
investigation thresholds. For example, the current rule's definition of 
accident does not correspond with thresholds established by the NTSB, 
FTA's Drug and Alcohol Program, the NTD, the FRA for shared track 
systems, or State or local occupational safety and environmental 
protection programs.
    In working sessions with oversight agencies and rail transit 
agencies, FTA identified a range of thresholds, currently used for 
major incident reporting in the NTD, that FTA believes are significant 
to the state safety oversight program. Using these thresholds, the 
proposed rule would require oversight agency notification within two 
(2) hours for any of the following events: (1) A fatality, where an 
individual is confirmed dead within 30 days of a transit-related 
incident, excluding suicides and deaths from illness; (2) injuries 
requiring immediate medical attention away from the scene for two or 
more individuals; (3) property damage to rail transit vehicles, non-
rail transit vehicles, other rail transit property or facilities that 
equals or exceeds $25,000; (4) an evacuation due to life safety 
reasons; or (5) a main-line derailment. These events could take place 
on a rail transit vehicle or on rail transit-controlled property, and 
could involve rail transit passengers, employees, contractors, rail 
transit facility occupants, other workers, or trespassers.
    By using consistent thresholds in the revised rule, oversight 
agencies would be able to track rail transit agency reports to the NTD 
using a module to be developed by FTA for this purpose. The ability to 
access information within the NTD would enable oversight agencies to 
consistently monitor rail transit agency performance of investigations, 
identify causal factors, and assign corrective actions using an 
existing federal resource. Consistent definitions allow FTA to remove 
elements of oversight agency annual reporting requirements, namely 
accident data and causal factors. FTA would get this information 
directly from the NTD to support its analysis of causal factors and 
drive safety and security initiatives and activities.
    For rail transit agencies that share track with the general 
railroad system and are subject to FRA notification requirements, FTA's 
revised rule proposes that the oversight agency would also be notified 
within two (2) hours of an incident for which the rail transit agency 
must notify the FRA. FTA believes this is necessary to address the role 
of the state safety oversight program in FRA's waiver process.
    FTA's proposed rule would also require that the oversight agency 
identify in its program standard the information to be given by the 
rail transit agency during notification. The oversight agency would be 
notified using any means, system, or format specified by the oversight 
agency in its program standard.

Investigations (Sec.  659.29)

    In the current rule, the oversight agency must (1) establish 
procedures to investigate accidents and unacceptable hazardous 
conditions and (2) unless the NTSB has investigated or will investigate 
an accident, the oversight agency must investigate accidents and 
unacceptable hazardous conditions occurring at a transit agency under 
its jurisdiction. In the current rule, investigation ``may involve no 
more than a review and approval of the transit agency's determination 
of the probable cause of an accident or unacceptable hazardous 
condition.''
    FTA is now proposing that the oversight agency must, at a minimum 
investigate, or cause to be investigated, accidents meeting one of 
three thresholds for which it receives notification: (1) A fatality; 
(2) injuries requiring immediate medical attention away from the scene 
for two or more persons; (3) property damage equal to or exceeding 
$25,000. This definition would correspond closely to the thresholds 
required by the NTSB for rail transit agency notification of events 
that may be subsequently investigated by the NTSB.
    In meeting this requirement, the oversight agency would be required 
to ensure that the investigation is conducted according to procedures 
reviewed and approved by the oversight agency and submitted to FTA. In 
the event the oversight agency designates the rail transit agency to 
conduct the investigation on its behalf, it would do so formally and 
would require the rail transit agency to use investigation procedures 
that have been formally approved by the oversight agency and submitted 
to FTA to fulfill the oversight agency's Initial or Annual Submission 
requirements.
    FTA's proposed rule specifies that each investigation must be 
documented in a final report that includes a description of 
investigation activities, identified causal factors, and a corrective 
action plan. The revised rule would provide the oversight agency with 
the flexibility to determine, in its program standard, when the final 
investigation report must be submitted to the oversight agency; the 
format of the final report; and whether status

[[Page 11226]]

updates or preliminary findings should also be submitted according to a 
timeframe specified by the oversight agency. FTA encourages oversight 
agencies and rail transit agencies to take advantage of existing 
reports and templates, to eliminate the need for additional rail 
transit agency reporting requirements. FTA's proposed rule also 
specifies that the oversight agency must review and formally approve 
each final investigation report.

Corrective Action Plans (Sec.  659.31)

    Based on the results of FTA's audit program and working sessions 
with oversight agencies and rail transit agencies, FTA's proposed rule 
would consolidate all requirements for corrective action plans into a 
single section. In this section, FTA proposes that the oversight agency 
would, at a minimum, require the rail transit agency to develop a 
corrective action plan for the following occurrences: (1) Results from 
investigations in which identified causal factors are determined by the 
rail transit agency or oversight agency as requiring corrective 
actions; and (2) findings from safety and security reviews performed by 
the oversight agency. Requirements for corrective action plan 
development for identified hazardous conditions would be specified by 
the rail transit agency in the hazard management process.
    The proposed rule specifies that each corrective action plan must 
identify the action to be taken by the rail transit agency and the 
schedule for its implementation. The corrective action plan would be 
reviewed and formally approved by the oversight agency. The oversight 
agency would be required to monitor the implementation of each approved 
corrective action plan.
    FTA is aware of current program challenges, described by both 
oversight agencies and rail transit agencies, regarding the means 
available to assess whether the corrective action has been implemented 
and whether it is successfully meeting its intended objective. To 
address these concerns, FTA's proposed rule specifies that the 
oversight agency must require the rail transit agency to provide (1) 
verification that the corrective action(s) has been implemented as 
detailed in the corrective action plan or a proposed alternate 
action(s) subject to oversight agency review and approval; and (2) 
periodic reports as requested by the oversight agency detailing the 
status of each corrective action(s) not completely implemented as 
detailed in the corrective action plan.
    FTA believes that this approach would provide the rail transit 
agency with sufficient flexibility to address the implementation of 
corrective action plans, while, at the same time, ensure the 
implementation of a process which can be effectively monitored by the 
oversight agency.

Oversight Agency Report to the Federal Transit Administration (Sec.  
659.33)

    Based on its experience with monitoring and evaluating 
implementation of the state safety oversight program, FTA is proposing 
minor modifications to the current oversight agency submissions to FTA, 
namely its initial submissions, annual submissions, and periodic 
submissions. The proposed regulation would require that all submissions 
to FTA are made electronically using an electronic reporting system. At 
the current time, FTA anticipates that this reporting would occur in an 
internet-based format, as a secure page on FTA's existing safety and 
security website. State oversight agencies will be assigned a secure 
login where they may upload their annual reports and electronic copies 
of supporting documents and procedures. FTA believes that automating 
this process would simplify the reporting function and data warehousing 
requirements associated with the rule.
    For initial submissions, the proposed rule would specify that the 
each designated oversight agency must submit to FTA: (1) Oversight 
agency program standard and supporting procedures; and (2) a 
certification that the system safety program plan and the system 
security plan have been developed, reviewed, and approved. In States 
with rail fixed guideway systems in passenger operations as of the 
publication date of this rule, the designated oversight agency must 
make its initial submissions to FTA no later one year after the 
publication of the final rule. In States with rail fixed guideway 
systems entering passenger operations after the publication date of 
this rule, the designated oversight agency must make its initial 
submission within a time frame proposed by the State in its designation 
submission and approved by FTA.
    For commenters addressing this section, FTA requests their opinions 
regarding the specified time frames for the initiation submissions. Is 
one year from the publication date of the final rule sufficient?
    FTA's revised rule proposes that annual submissions from oversight 
agencies be made prior to March 15 of each year, and comply with the 
annual report template developed by FTA and submitted to the oversight 
agencies prior to March 15 of each year. The annual submission would 
require the following: (1) A publicly available annual report 
summarizing its oversight activities for the preceding twelve months; 
(2) a report documenting findings from three-year safety review 
activities, if a three-year safety review has been completed since the 
last annual report was submitted; and (3) program standard and 
supporting procedures that have been changed during the preceding year.
    Finally, in its revised rule, FTA would have the authority to 
request periodic submissions from oversight agencies, which may include 
status reports for accident investigations, hazards, and corrective 
action plans.

Use of Contractors (Sec.  659.35)

    FTA's revised rule would remove the list of activities for which 
state safety oversight agencies may allow the use contractors to 
address state safety oversight requirements. Instead, this revised 
section would simply require the oversight agency to prohibit an 
individual or entity from providing state safety oversight services 
when there may exist a conflict of interest. FTA would leave this 
determination to the oversight agency.

Certification of Compliance (Sec.  659.37)

    As in the existing rule, FTA's revised rule would require that each 
oversight agency certify annually to the FTA that it has complied with 
the requirements of the state safety oversight program. FTA is 
proposing that each certification would be made electronically to FTA 
using an electronic reporting system specified by FTA. The oversight 
agency would be required to maintain a signed copy of each annual 
certification to FTA, subject to audit by FTA.

VI. Regulatory Process Matters

a. Executive Order 12866

    FTA has determined that this proposed action is a significant 
regulatory action within the meaning of Executive Order 12866. While it 
is anticipated that the economic impact of this rulemaking will be 
minimal because the changes here are incremental in nature and any 
incremental costs are negligible, FTA recognizes that the proposed rule 
affects State governments and may be of congressional interest. After 
consultation between DOT and the Office of Management and Budget (OMB) 
concerning this NPRM, it has been determined that further OMB review of 
the NPRM is not needed.
    In 1995, FTA evaluated the industry-wide costs and benefits of the 
current

[[Page 11227]]

rule. The economic analysis is available from FTA. In its analysis, FTA 
estimated the total costs for the first ten years to be approximately 
$9.1 million. However, when factoring in projections for program growth 
and new starts, the estimated annual burden between years five (5) and 
ten (10) increased approximately 15 percent. The present annual cost of 
49 CFR Part 659 is $1,337,688. FTA estimates the annual cost of the 
proposed rule (i.e., the annual cost of the entire rule as amended, as 
distinct from incremental costs of the proposed changes) to be 
approximately $2.1 million. The $800,000 difference between the current 
cost of implementing the rule and the annual cost of implementing the 
rule over the next 10 years is caused by mostly continued program 
growth (i.e., addition of seven (7) rail transit agencies and new 
states by the year 2013). Further, in its estimate for this proposed 
rule, FTA increased the assumed hourly rate for personnel responsible 
for implementing rule requirements from $25 per hour to $35 per hour. 
This increase reflects FTA experience with the implementation of the 
current rule's requirements and outreach with state and rail transit 
agency representatives. FTA believes that while the estimate for annual 
cost burden has increased, the proposed changes will not cause the 
regulated parties to drastically change their behavior or substantially 
increase the number of resources needed to meet the proposed 
requirements.

b. Departmental Significance

    This proposed rule is a significant regulation under the 
Department's Regulatory Policies and Procedures, because it makes 
changes to an important Departmental policy. Changes include the 
replacement of a referenced industry manual as the guideline for 
program compliance with proposed minimum requirements, a change in the 
definition of accident notification and investigation thresholds, 
clarification of critical processes such as the management of hazardous 
conditions and the performance of threat and vulnerability assessments, 
and many definitional additions.

c. Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), FTA has evaluated the effects of this proposed 
action on small entities and has determined that this proposed rule 
will not have a significant impact on a substantial number of small 
entities because these proposed changes will effect only larger transit 
agencies and oversight agencies (such as State departments of 
transportation and public utility commissions). Further, the original 
analysis done for the 1995 final rule, currently being implemented, led 
to the determination that there would be no significant impact on small 
entities. This rule merely proposes modest administrative changes to 
the original rule. For these reasons, FTA certifies that this action 
will not have a significant economic impact on a substantial number of 
small entities.

d. Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 
1995, 109 Stat. 48). This proposed rule will not result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year (2 
U.S.C. 1532). As noted above, the estimated $2.1 million annual cost of 
implementing the rule is well below this threshold.

e. Executive Order 13132 (Federalism Assessment)

    Prior to the publication of the original State Safety Oversight 
rule, FTA conducted a Federalism Assessment according to requirements 
of Executive Order 12612, which has since been revoked and replaced by 
the above-referenced order. That analysis can be found at 60 Fed. Reg. 
67041 (Dec. 27, 1995). Because the State Safety Oversight requirements 
are already in place, and this proposed rule only provides more 
detailed requirements for greater clarification and performance-based 
evaluation to the existing rule, FTA has determined that Federalism 
impacts are minimal.
    FTA has also determined that this action does not preempt any State 
law or State regulation or affect the States' ability to discharge 
traditional State governmental functions. As was noted in the original 
analysis, there may be instances in which a State or local agency faces 
a conflict between compliance with this rule and State and local 
requirements. Because compliance with this rule is a condition of 
Federal financial assistance, State and local governments have the 
option of not seeking the Federal funds if they choose not to comply 
with this rule.

f. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of Budget 
and Management (OMB) for each collection of information they conduct, 
sponsor, or require through regulations. This proposed rule includes 
information collection requirements subject to PRA. OMB approved FTA's 
collection requirements in the original rule and reviewed and approved 
an updated submission in September 1999. That approval can be found 
under OMB 2132-0558.
    Since this action contains a proposal to institute additional or 
altered paperwork collection burdens, FTA is required to submit this 
collection of information to OMB for review and approval. Accordingly, 
FTA seeks public comments on this proposed information collection 
requirement. Interested parties are invited to send comments regarding 
any aspect of this information collection, including but not limited 
to: (1) The necessity and utility of the information collection for the 
proper performance of the functions of FTA; (2) the accuracy of the 
estimated burden; (3) ways to enhance the quality, utility, and clarity 
of the collected information; and (4) ways to minimize the collection 
burden without reducing the quality of the collected information. 
Comments submitted in response to this NPRM will be summarized and/or 
included in the request for OMB approval of this information 
collection.
    The estimated burden for information collection requirements is an 
annualized amount of 26,502 hours and $927,600 for oversight agencies 
and 33,244 hours and $1,163,540 for rail transit agencies. These 
numbers concern the burdens of the entire as amended, as distinct from 
incremental burdens of the proposed changes.

List of Subjects in 49 CFR Part 659

    Grant Programs--Transportation, Mass transportation, Reporting and 
record keeping requirements, Safety, Security, and Transportation.
    For the reasons described in the preamble, FTA proposes to amend 
title 49, Code of Federal Regulations, Part 659, as set forth below:

PART 659--STATE SAFETY OVERSIGHT

    1. The authority citation for 49 CFR part 659 continues to read as 
follows:

    Authority: 49 U.S.C. 5330.

    2. Revise part 659 to read as follows:

PART 659--RAIL FIXED GUIDEWAY SYSTEMS; STATE SAFETY OVERSIGHT

Sec.
659.1 Purpose.
659.3 Scope.
659.5 Definitions.

[[Page 11228]]

659.7 Withholding of funds for noncompliance.
659.9 Designation of oversight agency.
659.11 Confidentiality of investigation reports.
659.13 System safety program standard.
659.15 System safety program plan.
659.17 System security plan.
659.19 Rail transit agency annual review of its system safety 
program plan and system security plan.
659.21 Rail transit agency internal safety and security reviews.
659.23 Oversight agency safety and security reviews.
659.25 Hazard management process.
659.27 Notification.
659.29 Investigations.
659.31 Corrective action plans.
659.33 Oversight agency reporting to the Federal Transit 
Administration.
659.35 Conflict of interest.
659.37 Certification of compliance.


Sec.  659.1  Purpose.

    This part implements 49 U.S.C. 5330 by requiring a State to oversee 
the safety and security of rail fixed guideway systems through a 
designated oversight agency.


Sec.  659.3  Scope.

    This part applies to a State that has within its boundaries a rail 
fixed guideway system as defined in this part.


Sec.  659.5  Definitions.

    Contractor means an entity that performs tasks required by this 
part on behalf of the oversight or rail transit agency. The rail 
transit agency may not be a contractor for the oversight agency.
    Corrective action plan means a plan developed by the rail transit 
agency that sets forth the actions the rail transit agency will take to 
minimize, control, correct, or eliminate hazardous conditions and the 
schedule for implementation for those actions.
    FTA means the Federal Transit Administration, an agency within the 
U.S. Department of Transportation.
    Hazard means any real or potential condition (as defined in the 
rail transit agency's hazard management process) that can cause injury, 
illness, or death; damage to or loss of a system, equipment or 
property; or damage to the environment.
    Individual means a passenger; employee; contractor; rail transit 
facility occupant; other transit facility worker; or trespasser.
    Investigation means the process used to determine the causal 
factors of an accident or hazard such that actions can be identified to 
prevent recurrence.
    Oversight agency means the entity, other than the rail transit 
agency, designated by the State or several States to implement this 
part.
    Passenger means a person who is on board, boarding, or alighting 
from a rail transit vehicle for the purpose of travel.
    Passenger operations means the period of time commencing when any 
aspect of rail transit agency operation is initiated with the intent to 
carry passengers.
    Program standard means a written document developed and adopted by 
the oversight agency that describes the policies, objectives, 
responsibilities, and procedures used to provide rail transit agency 
safety and security oversight.
    Rail fixed guideway system means, as determined by FTA, any light, 
heavy, or rapid rail system, monorail, inclined plane, funicular, 
trolley, or automated guideway that:
    (1) Is not regulated by the Federal Railroad Administration; and
    (2) Is included in FTA's calculation of fixed guideway route miles 
to receive funding under FTA's formula program for urbanized areas (49 
U.S.C. 5336); or
    (3) Has submitted documentation to FTA indicating its intent to be 
included in FTA's calculation of fixed guideway route miles to receive 
funding under FTA's formula program for urbanized areas (49 U.S.C. 
5336).
    Rail transit agency means an entity that operates a rail fixed 
guideway system.
    Rail transit-controlled property means property that is utilized by 
the rail transit agency and may be owned, leased, or maintained by the 
rail transit agency.
    Rail transit vehicle means the rail transit agency's rolling stock.
    Safety means freedom from harm resulting from unintentional acts or 
circumstances.
    Security means freedom from harm resulting from intentional acts or 
circumstances.
    System safety program plan means a document developed and adopted 
by the rail transit agency detailing its safety policies, objectives, 
responsibilities, and procedures.
    System security plan means a document developed and adopted by the 
rail transit agency detailing its security policies, objectives, 
responsibilities, and procedures.


Sec.  659.7  Withholding of funds for noncompliance.

    The Administrator of the FTA may withhold up to five percent of the 
amount required to be apportioned for use in any State or affected 
urbanized area in such State under FTA's formula program for urbanized 
areas if the State in the previous fiscal year has not met the 
requirements of this part and the Administrator determines that the 
State is not making adequate efforts to comply with this part.


Sec.  659.9  Designation of oversight agency.

    (a) States with oversight agencies designated for rail fixed 
guideway systems in passenger operations prior to the publication of 
this rule are not required to re-designate to FTA.
    (b) For a rail fixed guideway system that will operate in only one 
State, the State must designate an agency of the State, other than the 
rail transit agency, as the oversight agency to implement the 
requirements in this part.
    (c) For a rail fixed guideway system that will operate in more than 
one State, each affected State must designate an agency of the State, 
other than the rail transit agency, as the oversight agency to 
implement the requirements in this part. To fulfill this requirement, 
the affected States:
    (1) May agree to designate one agency of one State, or an agency 
representative of all States, to implement the requirements in this 
part.
    (2) In the event multiple States share oversight responsibility for 
a rail fixed guideway system, the States must ensure that the rail 
fixed guideway system is subject to a single program standard, adopted 
by all affected States.
    (d) The State designation of the oversight agency must:
    (1) Coincide with the execution of any grant agreement between FTA 
and the rail fixed guideway system within the State's jurisdiction; or
    (2) Occur prior to the application for funding under FTA's formula 
program for urbanized areas (49 U.S.C. 5336) by an entity determined by 
FTA as meeting the definition of rail fixed guideway system.
    (e) Within (60) days of designation of the oversight agency, the 
State must submit the following to FTA:
    (1) The name of the oversight agency designated to implement 
requirements in this part;
    (2) Documentation of the oversight agency's authority to provide 
State oversight;
    (3) Contact information for the representative identified by the 
designated oversight agency as having responsibility for oversight 
activities;
    (4) A description of the organizational and financial relationship 
between the designated oversight agency and the rail transit agency;
    (5) A schedule for the designated agency's development of its State 
safety oversight program including the projected date of its initial 
submission, as required in Sec.  659.31(a); and
    (f) The State's designation of its oversight agency and submission 
of

[[Page 11229]]

required information is subject to review and approval by FTA.


Sec.  659.11  Confidentiality of investigation reports.

    The State may prohibit an investigation report that may be prepared 
by the oversight agency from being admitted into evidence or used in a 
civil action for damages resulting from a matter mentioned in the 
report.


Sec.  659.13  System safety program standard.

    (a) The oversight agency must develop a written program standard 
that meets the requirements as specified in this part and includes, at 
a minimum, the following sections:
    (1) Oversight agency program management--In this section, the 
oversight agency must explain its authority, policies, and roles and 
responsibilities for the provision of safety and security oversight of 
the rail transit agencies within its jurisdiction. This section must 
provide an overview of planned activities to ensure on-going 
communication with each affected rail transit agency regarding safety 
and security information, as well as policies for communication with 
FTA, including initial, annual and periodic submissions.
    (2) Oversight agency program standard development--In this section, 
the oversight agency must describe its process for the development and 
review and adoption of the program standard, the modification and/or 
update of the program standard, and the process through which the 
program standard and any subsequent revisions are distributed to each 
affected rail transit agency.
    (3) Requirements for rail transit agency system safety program 
plan--In this section, the oversight agency must specify the minimum 
requirements to be addressed in the system safety program plan 
developed by each affected rail transit agency within its jurisdiction. 
This section must also describe the process and timeframe through which 
the oversight agency must receive, review, and approve the rail transit 
agency system safety program plan.
    (4) Requirements for rail transit agency system security plan--In 
this section, the oversight agency must identify the minimum 
requirements to be addressed in the system security plan developed by 
each affected rail transit agency within its jurisdiction. This section 
must also describe the process through which the oversight agency will 
review and approve the rail transit agency system security program 
plan.
    (5) Rail transit agency internal safety and security reviews--In 
this section, the oversight agency must describe its role in overseeing 
the rail transit agency internal safety or security review process. 
This includes a description of the process used by the oversight agency 
to receive rail transit agency checklists and procedures and approve 
the rail transit agency's annual report on findings.
    (6) Oversight agency safety and security review--In this section, 
the oversight agency must specify its process and criteria to be used 
every three years for conducting a complete review of each affected 
rail transit agency's implementation of its system safety program plan 
and system security plan. This section must also include the process to 
be used by the affected rail transit agency and the oversight agency to 
manage findings and recommendations from this review.
    (7) Hazard management process--In this section, the oversight 
agency must specify information to be contained in the affected rail 
transit agency's system safety program plan regarding the hazard 
management process, including requirements for on-going communication 
and coordination regarding the identification; categorization; 
resolution; and reporting of hazardous conditions to the oversight 
agency.
    (8) Notification--In this section, the oversight agency must 
identify the specific requirements for the notification of accidents by 
the rail transit agency to the oversight agency. This section must 
include required timeframes, means for notification, and the 
information to be submitted upon notification.
    (9) Investigations--In this section, the oversight agency must 
identify the thresholds for events which require an oversight agency 
investigation. The roles and responsibilities for conducting 
investigations must include: coordination with the rail transit agency 
investigation process; the role of the oversight agency in supporting 
investigations conducted by the National Transportation Safety Board; 
and review and approval of investigation reports, including formats and 
sign-offs.
    (10) Corrective actions--In this section, the oversight agency must 
specify its criteria for the development of a corrective action plan by 
the rail transit agency; its process for the review and approval of a 
corrective action plan; and its policies for the verification and 
tracking of corrective action plan implementation.
    (b) The program standard and any referenced program procedures must 
be submitted to FTA as part of the initial submission. Subsequent 
revisions and updates must be submitted to FTA as part of the oversight 
agency's annual submission.


Sec.  659.15  System safety program plan.

    (a) The oversight agency must require the rail transit agency to 
develop and implement a written system safety program plan that 
complies with requirements in this part and the oversight agency's 
program standard.
    (b) The system safety program plan must include, at a minimum:
    (1) A policy statement signed by top management which endorses the 
safety program and provides a description of the authority that 
establishes the system safety program plan.
    (2) A clear definition of the goals and objectives for the safety 
program and stated management responsibilities to ensure that they are 
achieved.
    (3) An overview of the management structure of the rail transit 
agency, including:
    (i) An organization chart;
    (ii) A description of how the safety function is integrated into 
the rest of the rail transit organization; and
    (iii) Clear identification of the lines of authority used by the 
rail transit agency to manage safety issues.
    (4) The process used to control changes to the system safety 
program plan, including:
    (i) Specification of an annual assessment regarding whether the 
system safety program plan should be updated; and
    (ii) Required coordination with the oversight agency, including 
timeframes for submission, revision and approval.
    (5) A description of the specific activities required to implement 
the system safety program, including:
    (i) Tasks to be performed by the rail transit safety function, 
specified by position and management accountability, in matrices and/or 
narrative format; and
    (ii) Safety-related tasks to be performed by other rail transit 
departments, specified by position and management accountability, in 
matrices and/or narrative format.
    (6) A description of the process used by the rail transit agency to 
implement its hazard management program, including activities for:
    (i) Hazard identification;
    (ii) Hazard investigation, evaluation and analysis;
    (iii) Hazard control and elimination;
    (iv) Hazard tracking; and
    (v) Requirements for on-going reporting to the oversight agency 
regarding hazard management activities and status.

[[Page 11230]]

    (7) A description of the process used by the rail transit agency to 
ensure that safety concerns are addressed in modifications to existing 
systems, vehicles, and equipment which do not require formal safety 
certification but which may have safety impacts.
    (8) A description of the safety certification process required by 
the rail transit agency to initiate passenger operations and for 
subsequent major projects undertaken to extend, rehabilitate, or modify 
the existing system or to replace vehicles and equipment.
    (9) A description of the process used to collect, maintain, 
analyze, and distribute safety data to ensure that the safety function 
within the rail transit organization receives the information necessary 
to support implementation of the system safety program.
    (10) A description of the process used by the rail transit agency 
to perform accident notification, investigation and reporting, 
including:
    (i) Notification thresholds for internal and external 
organizations;
    (ii) Accident investigation process and references to procedures;
    (iii) The process used to develop, implement and track corrective 
actions that address investigation findings;
    (iv) Reporting to internal and external organizations; and
    (v) Coordination with the oversight agency.
    (11) A description of the process used by the rail transit agency 
to develop an approved, coordinated schedule for all emergency 
management program activities, which include:
    (i) Meetings with external agencies;
    (ii) Emergency planning responsibilities and requirements;
    (iii) Process used to evaluate emergency preparedness, such as 
annual emergency field exercises;
    (iv) After action reports and implementation of findings;
    (v) Revision and distribution of emergency response procedures;
    (vi) Familiarization training for public safety organizations; and
    (vii) Employee training.
    (12) A description of the process used by the rail transit agency 
to ensure that planned and scheduled internal safety reviews are 
performed to evaluate compliance with the system safety program plan, 
including:
    (i) Identification of departments and functions subject to review;
    (ii) Responsibility for scheduling reviews;
    (iii) Process for conducting reviews, including the development of 
checklists and procedures and the issuing of findings;
    (iv) Review reporting requirements;
    (v) Tracking the status of implemented recommendations; and
    (vi) Coordination with the oversight agency.
    (13) A description of the process used by the trail transit agency 
to develop, maintain, and ensure compliance with rules and procedures, 
identified as having a safety impact, including:
    (i) Identification of operating and maintenance rules and 
procedures subject to review;
    (ii) Techniques used to assess the implementation of operating and 
maintenance rules and procedures by employees, such as performance 
testing;
    (iii) Techniques used to assess the effectiveness of supervision 
provided regarding the implementation of operating and maintenance 
rules; and
    (iv) Process for documenting results and incorporating them into 
the hazard management program.
    (14) A description of the process used for facilities and equipment 
safety inspections, including:
    (i) Identification of the facilities and equipment subject to 
regular safety related-inspection and testing;
    (ii) Techniques used to conduct inspections and testing;
    (iii) Inspection schedules and procedures; and
    (iv) Description of how results are entered into the hazard 
management process.
    (15) A description of the maintenance audits and inspections 
program including identification of the affected facilities and 
equipment, maintenance cycles, documentation required, and the process 
for integrating identified problems into the hazard management process.
    (16) A description of the training and certification program for 
employees and contractors, including:
    (i) Categories of safety-related work requiring training and 
certification;
    (ii) A description of the training and certification program for 
employees and contractors in safety-related positions;
    (iii) Process used to maintain and access employee and contractor 
training records; and
    (iv) Process utilized to assess compliance with training and 
certification requirements.
    (17) A description of the configuration management control process, 
including:
    (i) The authority to make configuration changes;
    (ii) Process for making changes; and
    (iii) Assurances necessary for all involved departments to be 
formally notified.
    (18) A description of the safety program for employees and 
contractors that incorporates the applicable local, state, and federal 
requirements, including:
    (i) Safety requirements that employees and contractors must follow 
when working on, or in close proximity to, rail transit agency 
property; and
    (ii) Processes for ensuring the employees and contractors know the 
requirements and follow them.
    (19) A description of the hazardous materials program including the 
process used to ensure knowledge of and compliance with program 
requirements.
    (20) A description of the drug and alcohol program and the process 
used to ensure knowledge of and compliance with program requirements.
    (21) A description of the measures, controls, and assurances in 
place to ensure that safety is involved in the rail transit agency's 
procurement process.
    (c) The oversight agency must review and approve the rail transit 
agency system safety program plan.
    (d) Upon approval of the system safety program plan, the oversight 
agency must issue a formal letter of approval to the rail transit 
agency.


Sec.  659.17  System security plan.

    (a) The oversight agency must require the rail transit agency to 
implement a system security plan that complies with requirements in 
this part and the oversight agency's program standard. The system 
security plan must be developed and maintained as a separate document 
and may not be part of the rail transit agency's system safety program 
plan.
    (b) The system security plan must, at a minimum:
    (1) Identify the policies, goals, and objectives for the security 
program endorsed by top management;
    (2) Document the rail transit agency's process for managing threats 
and vulnerabilities during operations and for major projects, 
extensions, new vehicles and equipment;
    (3) Identify controls in place that address the personal security 
of passengers and employees;
    (4) Document the rail transit agency's process for conducting 
internal security reviews to evaluate compliance and measure the 
effectiveness of the system security plan; and
    (5) Document the rail transit agency's process for making available 
its system security plan and accompanying procedures to the oversight 
agency for review and approval.
    (c) The oversight agency may prohibit a rail transit agency from 
publicly disclosing the system security plan.
    (d) Upon approval of the system security plan, the oversight agency 
must

[[Page 11231]]

issue a formal letter of approval to the rail transit agency.


Sec.  659.19  Rail transit agency annual review of its system safety 
program plan and system security plan.

    The oversight agency must require the rail transit agency to 
conduct an annual review of its system safety program plan and system 
security plan.
    (a) In the event the rail transit agency's system safety program 
plan is modified, the rail transit agency must submit the modified plan 
and any subsequently modified procedures to the oversight agency for 
review and approval. Upon approval of the plan the oversight agency 
must issue a formal letter of approval to the rail transit agency.
    (b) In the event the rail transit agency's system security plan is 
modified, the rail transit agency must make the modified system 
security plan and accompanying procedures available to the oversight 
agency for review, subject to requirements specified in Sec.  
659.17(b)(5). Upon approval of the plan the oversight agency must issue 
a formal letter of approval to the rail transit agency.


Sec.  659.21  Rail transit agency internal safety and security reviews.

    (a) The oversight agency must require the rail transit agency to 
develop and document in its system safety program plan, a process for 
the performance of on-going internal safety and security reviews.
    (b) The internal safety and security review process must, at a 
minimum:
    (1) Describe the process used by the rail transit agency to 
determine if all identified elements of its system safety program plan 
and system security plan are performing as intended.
    (2) Ensure that all elements of the system safety program plan and 
system security plan are reviewed in an on-going manner and completed 
over a 3-year cycle. The 3-year cycle commences [EFFECTIVE DATE OF 
FINAL RULE].
    (c) The rail transit agency must notify the oversight agency at 
least (30) days prior to the conduct of scheduled internal safety and 
security reviews.
    (1) The rail transit agency must submit to the oversight agency any 
checklists or procedures it will use during the safety portion of its 
review.
    (2) Any checklists or procedures the rail transit agency will use 
for the security portion of its review must be made available to the 
oversight agency subject to Sec.  659.17(b)(5).
    (d) The oversight agency must require the rail transit agency to 
submit, annually, a report documenting internal safety and security 
review activities and the status of subsequent findings and 
recommendations. The security portion of this report must be made 
available for oversight agency review subject to Sec.  659.17(b)(5).
    (e) The annual report must be accompanied by a formal letter of 
certification signed by the rail transit agency's executive director or 
general manager indicating that the rail transit agency is in 
compliance with its system safety program plan and system security 
plan.
    (f) The oversight agency must formally review and approve the 
annual report.


Sec.  659.23  Oversight agency safety and security reviews.

    Every 3 years, or in an on-going manner, commencing with the 
initiation of rail transit agency passenger operations, the oversight 
agency must conduct an on-site review of the rail transit agency's 
implementation of its system safety program plan and system security 
plan.


Sec.  659.25  Hazard management process.

    (a) The oversight agency must require the rail transit agency to 
develop and document in its system safety program plan a process to 
identify and resolve existing hazards conditions during its operation, 
as well as any hazards arising due to subsequent system extensions or 
modifications, operational changes, or other changes within the rail 
transit environment.
    (b) The hazard management process must, at a minimum:
    (1) Define the rail transit agency's approach to hazard management 
and the implementation of an integrated system-wide hazard resolution 
process;
    (2) Specify the sources of, and the mechanisms to support, the on-
going identification of hazards;
    (3) Define the process by which identified hazards will be 
evaluated and prioritized for elimination or control;
    (4) Identify the mechanism used to track to resolution the 
identified hazard(s);
    (5) Define minimum thresholds for the notification and reporting to 
state oversight agencies of hazardous conditions; and
    (6) Specify the process by which the rail transit agency will 
provide on-going reporting of hazard resolution activities to the 
oversight agency.


Sec.  659.27  Notification.

    (a) The oversight agency must require the rail transit agency to 
notify the oversight agency within two (2) hours of any event involving 
a rail transit vehicle or taking place on rail transit-controlled 
property where one or more of the following occurs:
    (1) A fatality, where an individual is confirmed dead within 30 
days of a transit-related incident, excluding suicides and deaths from 
illness;
    (2) Injuries requiring immediate medical attention away from the 
scene for two or more individuals;
    (3) Property damage to rail transit vehicles, non-rail transit 
vehicles, other rail transit property or facilities that equals or 
exceeds $25,000;
    (4) An evacuation due to life safety reasons; or
    (5) A main-line derailment.
    (b) The oversight agency must require rail transit agencies that 
share track with the general railroad system and are subject to the 
Federal Railroad Administration notification requirements to notify the 
oversight agency within two (2) hours of an incident for which the rail 
transit agency must notify the Federal Railroad Administration.
    (c) The oversight agency must identify in its program standard the 
method of notification and the information to be given by the rail 
transit agency.


Sec.  659.29  Investigations.

    (a) The oversight agency must investigate, or cause to be 
investigated, at a minimum, any event involving a rail transit vehicle 
or taking place on rail transit-controlled property meeting the 
fatality, injury, or property damage thresholds identified in Sec.  
659.27(a).
    (b) The oversight agency must use approved investigation procedures 
that have been submitted to FTA as required in the initial submission 
or annual submission.
    (c) In the event the oversight agency designates the rail transit 
agency to conduct investigations on its behalf, it must do so formally 
and require the rail transit agency to use investigation procedures 
that have been formally approved by the oversight agency.
    (d) Each investigation must be documented in a final report that 
includes a description of investigation activities, identified causal 
factors, and a corrective action plan.
    (1) The final investigation report must be submitted to the 
oversight agency in a format and timeframe specified by the oversight 
agency.
    (2) The oversight agency must review and formally approve each 
final investigation report.
    (3) The oversight agency shall have the authority to require 
periodic status reports that document investigation activities and 
findings in a time frame determined by the oversight agency.

[[Page 11232]]

Sec.  659.31  Corrective action plans.

    (a) The oversight agency must, at a minimum, require the 
development of a corrective action plan for the following:
    (1) Results from investigations in which identified causal factors 
are determined by the rail transit agency or oversight agency as 
requiring corrective actions; and
    (2) Findings from safety and security reviews performed by the 
oversight agency.
    (b) Each corrective action plan should identify the action to be 
taken by the rail transit agency and the schedule for its 
implementation.
    (c) The corrective action plan must be reviewed and formally 
approved by the oversight agency.
    (d) The rail transit agency must provide the oversight agency:
    (1) Verification that the corrective action(s) has been implemented 
as detailed in the corrective action plan or that a proposed alternate 
action(s) has been implemented subject to oversight agency review and 
approval; and
    (2) Periodic reports as requested by the oversight agency detailing 
the status of each corrective action(s) not completely implemented as 
detailed in the corrective action plan.
    (e) The oversight agency must monitor and track the implementation 
of each approved corrective action plan.


Sec.  659.33  Oversight agency reporting to the Federal Transit 
Administration.

    (a) Initial submission: in States with rail fixed guideway systems 
in passenger operations as of the publication date of this rule, the 
designated oversight agency must make its initial submission to FTA by 
[EFFECTIVE DATE OF FINAL RULE]. In States with rail fixed guideway 
systems initiating passenger operations after the publication date of 
this rule, the designated oversight agency must make its initial 
submission within the time frame specified by the State in its 
designation submission.
    (b) The initial submission must include the following:
    (1) Oversight agency program standard and referenced procedures; 
and
    (2) Certification that the system safety program plan and the 
system security plan have been developed, reviewed, and approved.
    (c) Annual Submission: before March 15 of each year, the oversight 
agency must submit the following to FTA:
    (1) A publicly available annual report summarizing its oversight 
activities for the preceding 12 months, including a description of the 
causal factors of investigated accidents and status of corrective 
actions, updates and modifications to rail transit agency program 
documentation;
    (2) A report documenting findings from 3-year safety review 
activities, if a 3-year safety review has been completed since the last 
annual report was submitted; and
    (3) Program standard and supporting procedures that have been 
changed during the preceding year.
    (d) Periodic submission--FTA retains the authority to periodically 
request program information.
    (e) Electronic reporting--All submissions to FTA required in this 
part must be made electronically using an electronic reporting system 
specified by FTA.


Sec.  659.35  Conflict of interest.

    The oversight agency must prohibit a party or entity from providing 
services to both the oversight agency and rail transit agency when 
there exists a conflict of interest.


Sec.  659.37  Certification of compliance.

    (a) Annually, the oversight agency must certify to the FTA that it 
has complied with the requirements of this part.
    (b) Each certification shall be made electronically to FTA using an 
electronic reporting system specified by FTA.
    (c) The oversight agency must maintain a signed copy of each annual 
certification to FTA, subject to audit by FTA.

    Issued on: February 24, 2004.
Jennifer L. Dorn,
Administrator.
[FR Doc. 04-5148 Filed 3-8-04; 8:45 am]
BILLING CODE 4910-57-P