[Federal Register Volume 70, Number 82 (Friday, April 29, 2005)]
[Rules and Regulations]
[Pages 22562-22583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8567]



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Part IV





Department of Transportation





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Federal Transit Administration



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49 CFR Part 659



Rail Fixed Guideway Systems; State Safety Oversight; Final Rule

  Federal Register / Vol. 70, No. 82 / Friday, April 29, 2005 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 659

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


Rail Fixed Guideway Systems; State Safety Oversight

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Final rule.

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SUMMARY: The Federal Transit Administration is revising its rule on 
state safety oversight of rail fixed guideway systems not regulated by 
the Federal Railroad Administration (FRA). Since January 26, 1996, when 
the rule took effect, the agency has gained experience and insight 
concerning the benefits of and recommended practices for implementing 
state safety oversight requirements. This final rule revises the State 
Safety Oversight rule and adds clarifying sections, further 
specification concerning what the state must require to monitor safety 
and security of non-FRA rail systems, and incorporates into the body of 
the regulation material previously incorporated by reference. The 
revised part should be easier to understand and ensure greater 
compliance of the State oversight agencies, and enhance the safety and 
security of the rail systems governed by this part.

DATES: The effective date of this rule is May 31, 2005. The compliance 
date of this rule is May 1, 2006.

FOR FURTHER INFORMATION CONTACT: For program issues, Jerry A. Fisher or 
Roy Field, Office of Safety and Security, Federal Transit 
Administration, (202) 366-2896 (telephone) or (202) 366-3394 (fax). For 
legal issues, Richard Wong, Office of Chief Counsel, Federal Transit 
Administration, (202) 366-4011.

SUPPLEMENTARY INFORMATION:

Availability of the Final Rule

    You may download this rule and other safety rules from the FTA 
Office of Safety and Security home page at http://transit-safety.volpe.dot.gov. The rule may also be downloaded from the 
Government Printing Office's Federal Register Main Page at http://www.gpoaccess.gov/fr/index.html. Users may download an electronic copy 
of this document using a modem and suitable communications software 
from the GPO Electronic Bulletin Board Service at (202) 512-1661. To 
access all comments received by the U.S. DOT Dockets, Room PL-401, 
refer to the Dockets Management System (DMS) on the DOT home page at 
http://dms.dot.gov. The DMS is available 24 hours each day, 365 days 
each year. Follow the online instructions for more information.

Outline of Preamble

I. Background
II. Purpose
III. Rulemaking Overview/Summary of Rule Changes
IV. Overview of the Comments
V. Section by Section Discussion of Public Comments
     General Comments
     Definitions
     Withholding of Funds for Noncompliance
     Designation of Oversight Agency
     Confidentiality of Investigation Reports and Security 
Plans
     Oversight Agency Program Standard
     System Safety Program Plan
     System Security Plan
     Rail Transit Agency Review of its System Safety Program 
Plan
     Rail Transit Agency Internal Safety and Security Review
     Oversight Agency Safety and Security Review
     Hazard Management Process
     Accident
     Corrective Action Plans
     Oversight Agency Reporting to the Federal Transit 
Administration
     Conflict of Interest
VI. Section-by-Section Final Rule Analysis
VII. Distribution and Derivation Tables
VIII. Regulatory Process Matters
     Executive Order 12866
     Departmental Significance
     Regulatory Flexibility Act
     Unfunded Mandates Reform Act of 1995
     Executive Order 13132 (Federalism Assessment)
     Paperwork Reduction Act
     List of Subjects

I. Background

    This document adopts as final a new part 659, Rail Fixed Guideway 
Systems; State Safety Oversight. This preamble to the final rule 
contains a brief regulatory and program background about FTA's state 
safety oversight program. It also summarizes the final rule provisions, 
and discusses in detail the comments received on the proposed rule. We 
also include in the preamble a section by section description of the 
regulation. This is important, because, as discussed in the proposed 
rule, we have changed the organization of the rule to enhance 
usability. As a further aid, we are publishing at the end of this 
preamble, distribution and derivation tables, which track where old 
sections are in the revised part 659 and, conversely, the old section 
from which the new part 659 sections are derived.
    The preamble to a proposed rule typically contains more detailed 
information than the final rule, because it lays out in detail the 
provisions to aid public comment. This is true for this proposed and 
final rule as well, but we have included a level of information in 
today's Federal Register document that will provide a cogent 
explanation of the intent and provisions of the program.
    Regulatory Background. In 1991, Congress required for the first 
time that the Federal Transit Administration (FTA) establish a program 
providing for the State-conducted oversight of the safety and security 
of rail systems not regulated by the Federal Railroad Administration 
(FRA). (See Intermodal Surface Transportation Efficiency Act of 1991, 
Pub. L. 102-240, Sec. 3029, also codified at 49 U.S.C. 5330.) FTA 
published its final rule adopting a new part 659, Rail Fixed Guideway 
Systems; State Safety Oversight, on December 27, 1995 (60 FR 67034). 
The final rule went into effect January 26, 1996.
    For reasons described in the next section of this preamble, the 
agency determined that improvements could be made to part 659. 
Accordingly, on March 9, 2004, FTA published a Notice of Proposed 
Rulemaking (NPRM) proposing changes to its state safety oversight rule 
contained in 49 CFR part 659. Today's document contains the final rule, 
making changes to the substance and format of the existing part 659. 
These changes are detailed later in this preamble.
    Program Background. When FTA issued its final rule in 1995, only 
five (5) states maintained provisions for safety oversight of rail 
transit agencies. Today, twenty-six (26) state oversight agencies have 
developed and implemented state safety oversight programs affecting 
forty-four (44) rail fixed guideway systems. It is projected that over 
the next decade, an additional four (4) state oversight agencies and as 
many as twelve (12) new starts rail transit systems may be affected by 
part 659.
    Since part 659 created a community of oversight agencies where 
previously few existed, the initial goal of the rulemaking was to 
ensure that states were provided with sufficient authority to establish 
programs that met the rule's statutory requirements. Now, after eight 
years of experience in implementing part 659 and evaluating its 
performance, FTA has identified changes that will improve the program. 
Today's final rule addresses many of these changes.
    Since the beginning of the state safety oversight program, FTA has 
maintained outreach with a variety of groups, including the affected 
states, rail transit agencies, our DOT sister agency, FRA, the National 
Transportation Safety Board (NTSB), and the American Public

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Transportation Association (APTA). In addition, FTA has instituted a 
regulatory compliance program to ensure compliance with the rule's 
provisions. Since the program went into effect, FTA has received 
several recommendations concerning possible program improvements, and 
has taken these recommendations into consideration in the development 
of the final rule.
    For example, the final rule clarifies the role of the state 
oversight agency and the role of the rail transit provider. We have 
done this by reorganizing the regulation and including more complete 
descriptions of the responsibilities of the state, the state oversight 
agency, and what the state oversight agency must require of the rail 
transit property. The final rule also includes a new definition of 
hazard and contains a separate section on a hazard management plan.
    In addition, in September 2002, the NTSB issued recommendations to 
FTA (R-02-18 and -19). NTSB stated that the APTA Manual, published on 
August 20, 1991, does ``not contain the necessary specific guidance for 
assessing the effectiveness of rules compliance programs; as a result, 
the guidelines are not effective tools for regulatory authorities or 
transit agencies.'' The NTSB recommended that rail transit agencies 
adopt, in their system safety program plans, specific standards 
covering rules compliance and efficiency testing programs for 
operations and maintenance personnel. NTSB also recommended to APTA 
that it update its Manual to address this concern and that FTA adopt 
the updated APTA Manual.
    APTA may choose to update its Manual. However, to provide a more 
user-friendly regulation, the FTA determined that it is in the interest 
of our users to publish all of the provisions of the APTA Manual in the 
state safety oversight regulation. By eliminating a reference to the 
APTA manual in the regulation, and listing all requirements in full, 
this allows FTA to respond to changed circumstances and subsequent 
recommendations from NTSB directly through the rulemaking process. This 
listing also provides greater usability of the regulations, since all 
of the requirements are printed in one place.

II. Purpose

    This rule is published to improve the performance of the State 
Safety Oversight Program and to ensure the following outcomes: (1) 
Enhance program efficiency; (2) increase responsiveness to 
recommendations from the NTSB and emerging safety and security issues; 
(3) improve consistency in the collection and analysis of accident 
causal factors through increased coordination with other Federal 
reporting and investigation programs; and (4) improve performance of 
the hazard management process. The rule also clarifies FTA's oversight 
management objectives, and streamlines current reporting requirements, 
including the change from paper reporting to electronic reporting. 
Finally, the rule addresses heightened concerns for rail transit 
security and emergency preparedness.

III. Rulemaking Overview/Summary of Rule Changes

    FTA amended several sections of the State Safety Oversight rule. 
These changes are summarized below, according to their effect on state, 
oversight agency, rail transit agency, and FTA roles and 
responsibilities.

The State

    Under this rule, the primary responsibility of the state remains 
designating an entity--other than the rail transit agency--to oversee 
the safety and security of a rail fixed guideway system. If a rail 
fixed guideway system operates in more than one state, each state may 
designate an entity as the oversight agency or may agree to designate 
one agency from one state to provide oversight. In either case, this 
rule requires that in all circumstances in which a rail fixed guideway 
system is operating in multiple states, the rail transit agency 
operating the rail fixed guideway system must be subject to only one 
program standard.
    In addition, an affected state's designation of its oversight 
agency must now either coincide with the execution of any New Starts 
project grant agreement between FTA and the rail fixed guideway system 
within the state's jurisdiction, or occur before the application for 
funding under FTA's formula program for urbanized areas (49 U.S.C. 
5307) by an entity meeting the definition of rail fixed guideway 
system.
    Within sixty (60) days of designating the oversight agency, the 
state must make its designation submission to FTA. A state that has 
already designated an oversight agency before the implementation of 
this rule does not need to re-designate. Should a state change its 
designated oversight agency, it must submit its proposed designation to 
FTA for review and approval within thirty (30) days of its change. 
After FTA approves the oversight agency designation, the designated 
oversight agency must provide its initial submission within thirty (30) 
days of receiving FTA's approval.
    The state may prohibit public disclosure of investigation reports. 
Furthermore, states are not required to make available the rail transit 
agency's security plan or referenced procedures. If states cannot 
protect rail transit agency security plans or supporting procedures 
from public disclosure, then the state must review these documents on-
site at the rail transit agency.

The Oversight Agency

    This rule identifies the minimum requirements for the oversight 
agency's development of its program standard and the rail transit 
agency's development of its system safety program plan and security 
plan. In the previous regulation some of these standards were contained 
in the APTA Manual, which was incorporated by reference into the 
regulation.
    Each oversight agency must require the rail transit agency to 
develop and maintain a separate system safety program plan and system 
security plan that complies with the oversight agency's program 
standard and requirements specified in this part. The oversight agency 
must still require the rail transit agency to conduct internal safety 
and security audits.
    The oversight agency must review and approve the rail transit 
agency's annual report, documenting rail transit agency internal safety 
and security audit findings. The rule also requires the oversight 
agency to oversee an annual review by the rail transit agency of its 
system safety program plan and system security plan to determine 
whether or not either plan must be modified or updated. The oversight 
agency must review and approve any modification or update.
    The oversight agency must require the rail transit agency to 
develop a hazard management process as part of its system safety 
program plan, to be reviewed and approved by the oversight agency. The 
oversight agency must require the rail transit agency to develop, in 
coordination with the oversight agency, thresholds for the notification 
and reporting of hazards to the oversight agency. Measures to eliminate 
or control hazards and the associated corrective actions are to be 
managed through the hazard management process, including rail transit 
agency procedures for providing the oversight agency with reports to 
track mitigation.
    FTA has modified the thresholds for the notification and 
investigation of accidents. The oversight agency must require rail 
transit agencies to report the occurrence of accidents within two (2) 
hours. In those instances where the rail

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transit agency shares track with the general railroad system and is 
subject to FRA notification requirements, the rail transit agency must 
notify the oversight agency within two (2) hours of an incident for 
which FRA is notified.
    The oversight agency must investigate--or cause to be 
investigated--all accidents meeting the notification and investigation 
thresholds. The oversight agency must review and approve all 
procedures--except those used by the NTSB--that will be used to conduct 
an investigation on its behalf. Should the oversight agency not accept 
the rail transit agency's investigation report, it must either conduct 
its own investigation or prepare its own report with the amended 
findings. If the NTSB investigates an accident, the oversight agency 
remains responsible for the development of the accident report and 
corrective actions. It may adopt, in whole or in part, NTSB's report 
and findings, just as it may adopt, in whole or in part, the rail 
transit agency's investigation report and findings.
    The oversight agency must require the rail transit agency to 
develop corrective action plans to address findings from accidents and 
the oversight agency's three-year safety and security review. In the 
case of accident investigations, the oversight agency is responsible 
for ensuring that a corrective action plan is developed, implemented, 
and tracked, regardless of the entity that conducts the investigation 
on the oversight agency's behalf. Should the NTSB conduct the accident 
investigation, the oversight agency must identify a process for 
evaluating NTSB findings to determine whether or not corrective actions 
should be implemented. The oversight agency must also identify a 
dispute resolution process for corrective action plan implementation, 
should the rail transit agency disagree with the oversight agency.
    The oversight agency must still submit three types of reports to 
FTA: the initial submission, annual reports, and periodic reports. The 
initial submission must be delivered to FTA not later than sixty (60) 
days prior to the commencement of passenger operations for any New 
Starts system. All designated oversight agencies must provide FTA with 
an initial submission by the rule's date of effectiveness. An oversight 
agency designated after the rule's date of effectiveness must make its 
initial submission by the date specified in its designation submission, 
but no later than sixty (60) days prior to the commencement of 
passenger operations. In the event a state changes its oversight 
agency, the initial submission is due within thirty (30) days of the 
new designation. The initial submission must include the oversight 
agency program standard, all referenced procedures, and certification 
that the rail transit agency system safety program plan and the system 
security plan have been developed, reviewed, and approved by the 
oversight agency.
    Annual reports must summarize oversight activities for the 
preceding twelve (12) months, including: a description of the causal 
factors of investigated accidents and status of corrective actions, 
updates, and modifications to rail transit agency program 
documentation; a report that documents findings from three-year safety 
review activities, whether or not a three-year safety review has been 
completed since the last annual report was submitted; a description of 
the program standard and supporting procedures, if they have changed 
during the preceding year; and certification that any changes or 
modifications to the rail transit agency system safety program plan or 
system security plan have been reviewed and approved by the oversight 
agency.
    FTA may request periodic reports from the oversight agency. All 
three types of reports must be submitted electronically to FTA.
    The oversight agency must ensure that there is no conflict of 
interest by either the oversight agency or an entity operating on its 
behalf in providing oversight activities required in this rule.

Rail Transit Agency

    FTA added the definition of ``rail transit agency'' as the agency 
responsible for operating the rail fixed guideway system. FTA modified 
the definition of ``rail fixed guideway system'' to ensure that states, 
their designated oversight agencies, and rail transit agencies have 
completed applicable requirements prior to the start of passenger 
operations.
    The rail transit agency is still required to develop a system 
safety program plan and security plan that complies with the oversight 
agency's program standard and the minimum requirements specified in 
this rule. However, the two documents must be developed and maintained 
separately. The rail transit agency must review its system safety 
program plan and security plan annually. If either the system safety 
program plan or security plan must be modified, the rail transit agency 
must submit the modified plan to the oversight agency for review and 
approval.
    The rail transit agency must ensure that all elements of its system 
safety program and security plan are reviewed in an ongoing manner over 
a three-year cycle, in accordance with internal audit requirements. The 
rail transit agency must provide the oversight agency at least thirty 
(30) days notice prior to the conduct of scheduled internal safety and 
security reviews. The rail transit agency must also submit to the 
oversight agency checklists and procedures to be used in conducting the 
reviews. The rail transit agency's chief executive must submit a 
statement of compliance or noncompliance with its system safety program 
plan or security plan, along with the rail transit agency's annual 
report, to the oversight agency. If the rail transit agency is in 
noncompliance, the report must identify the areas that do not conform 
to the rail transit agency's system safety program plan, and must list 
measures being taken to bring these areas into compliance.
    The rail transit agency must develop and implement a hazard 
management process that includes, at a minimum, a definition of the 
rail transit agency's approach to the hazard management and resolution 
process, a list of the sources and mechanisms used to support the 
ongoing identification of hazards, the process by which identified 
hazards will be evaluated and prioritized for elimination or control, 
the mechanism used to track identified hazards to resolution, the 
minimum thresholds for notification and reporting hazards to the 
oversight agency, and the process for ongoing reporting of hazard 
resolution activities to the oversight agency.
    The rail transit agency must notify the oversight agency within two 
(2) hours of accidents in a format defined by the oversight agency. The 
rail transit agency must provide verification that corrective actions 
to address the finding(s) from an accident investigation are 
implemented as described in a corrective action plan, or must propose 
an alternative action(s) to be implemented subject to oversight agency 
review and approval. The rail transit agency must provide periodic 
reports as requested by the oversight agency detailing the status of 
corrective action implementation.

Federal Transit Administration

    The FTA will continue to evaluate whether states have complied with 
the rule or have made adequate efforts to comply with it. This rule 
directs FTA to approve state designation submittals, oversight agency 
initial submissions, and oversight agency annual submissions. FTA 
retains the authority to request periodic submissions from oversight 
agencies.

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IV. Overview of the Comments

    FTA received eighteen (18) comments in response to the NPRM. FTA 
considered all comments filed. The breakdown among commenter categories 
is as follows:


State DOTs..........................................................   7
Transit Agencies....................................................   6
Public Utilities....................................................   2
Trade Associations..................................................   2
States..............................................................   1
 

    Our evaluation of the comments did not lead to substantial changes 
between the NPRM and this Final Rule. In Section V below, we discuss in 
detail the public comments addressing issues raised in the NPRM.

V. Section by Section Discussion of the Comments

General Comments

    Historically, states have raised concern over the lack of Federal 
funding to assist them in the development and implementation of safety 
and security oversight programs. In response to FTA's NPRM, several 
commenters addressed the issue of what the states term an ``unfunded 
mandate.''
    Two commenters stated that the proposed rule would increase the 
burden on the states to perform oversight without providing any 
funding. These commenters noted that the proposed increase in workload 
is beyond their current state funding levels. One of the commenters 
suggested that safety oversight could be monitored and enforced through 
FTA's Triennial Review Process instead of through the states. One 
commenter noted that FTA makes funds available to support the 
development of the oversight program. The commenter recommended that 
``FTA provide funding for all capital projects includ[ing] monies to 
the [oversight agency] for the significant additional costs of safety 
and security certification.'' One commenter suggested that FTA identify 
ways to minimize the information collection burden without reducing the 
quality of the collected information.
    Finally, one commenter suggested that the rule should take into 
account typical state funding cycles in relation to the schedule for 
implementing corrective actions.
    FTA Response. For purposes of required analysis under Federal law 
applicable to Federal agencies, as discussed in Part VI of this 
preamble, this rule does not constitute an ``unfunded mandate.'' FTA 
has attempted to identify Federal funding sources to support state 
safety oversight. For states with New Starts projects, capital grant 
monies may be used for the initial development of state oversight 
agencies. However, neither operating nor capital grants can be used to 
support existing oversight agencies once passenger service commences.
    FTA provides technical assistance to state oversight agencies under 
development or in existence in an effort to effectively promote safety 
and security in the rail transit environment and to reduce the learning 
curve of a state new to the program. The rule makes allowances for 
state funding cycles and corrective action implementation dates. The 
implementation cycle of corrective actions continues to be a local 
issue, and schedules for the implementation of corrective actions 
should be decided by the rail transit agency, with appropriate state 
oversight, taking into consideration the funds available to implement 
the corrective actions. FTA believes that the rule allows the rail 
transit agency and oversight agency to identify an appropriate schedule 
for corrective action implementation.

Definitions

    One commenter recommended changing the definition of ``hazard'' to 
``hazard means any real or potential conditions,'' rather than just 
stating ``hazard means any condition.'' The commenter recommended that 
FTA clearly define the context of real or potential condition. Two 
commenters suggested that FTA replace the phrase ``hazardous 
condition'' with ``hazard.''
    One commenter suggested including a definition of ``medical 
attention'' (a term used in Sec.  659.33) and ``first aid.'' Three 
commenters suggested that definitions should be included for ``damage 
to a system'' and ``damage to the environment,'' terms used in the 
definition of ``hazard.'' These commenters suggested that the terms be 
quantifiable.
    A few commenters suggested that FTA either remove the definition of 
``rail transit-controlled property'' or limit its applicability to only 
areas that support operations, including revenue facilities.
    A few commenters also suggested that changes be made to the 
definition of ``individual.'' The comments ranged from deleting the 
term to modifying the definition to make it less restrictive. Two 
commenters recommended that the definition on ``passenger'' include 
``patron'' to address persons who have just used or intend to use the 
rail transit system.
    One commenter requested that the rule include the definition of 
``security breach.'' Finally, one commenter recommended that the rule 
define ``qualified professional.''
    FTA Response. FTA believes that a Federal standard defining the 
real or potential condition for which a rail transit agency must 
mitigate as a hazard oversteps the intent of this rule. The rule's 
definition of hazard currently allows management and safety 
representatives from the rail transit agency--with approval by the 
oversight agency and potential review by FTA--the opportunity to 
identify and define the ``real or potential condition'' for which the 
rail transit agency must mitigate to a level that is acceptable by 
management and the state oversight agency.
    In response to commenters recommending the replacement of 
``hazardous condition'' with ``hazard,'' FTA concurs and has made this 
change throughout the rule.
    FTA does not agree with the recommendation by the commenter to 
remove the definition of ``rail transit-controlled property.'' It is 
important to maintain consistency within FTA's data collection 
programs, specifically state safety oversight and the National Transit 
Database (NTD). Furthermore, through its definition of rail transit-
controlled property, FTA expects that safety or security incidents 
occurring on property controlled by the rail transit agency that meet 
the accident notification thresholds must be reported to the oversight 
agency. We believe that the rail transit agency's hazard identification 
process should include all incidents that occur on its property, 
regardless of whether or not the activity supports revenue operations.
    FTA has chosen to keep the definition of ``individual,'' but add 
the term ``person'' to the definition to ensure that anyone involved in 
an accident, meeting the thresholds specified in the notification and 
investigation sections, is covered by this part. This includes 
``pedestrians'' and ``others,'' as specified in the NTD.
    FTA does not believe it is appropriate to identify each type of 
medical attention that an individual could receive as a result of an 
accident, to support notification and investigation thresholds. The 
rule is clear that if two or more individuals receive immediate medical 
attention away from the scene, the incident qualifies as an accident 
under Sec.  659.33 and Sec.  659.35. FTA's intent is to capture serious 
events and believes that even if the injuries sustained by two or more 
individuals were minor, the accident itself, regardless of the type of 
injury, warrants notification and investigation.

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    FTA believes that a detailed definition of ``damage'' to the system 
or environment is most appropriately developed by the rail transit 
agency, with concurrence from the state oversight agency. The threshold 
for damage or potential damage to the system, equipment, property or 
the environment should be identified during the development of the rail 
transit agency's hazard management process. Each property must address 
its operating risk in accordance with management's policy for providing 
standard care to the rail transit agency's passengers and employees. It 
is the oversight agency's responsibility to ensure that the rail 
transit agency's level of accepted risk meets the intent of the 
oversight agency's program standard and this rule, as well as conform 
to the rail transit agency's requirements for mitigating system hazards 
and their potential to cause loss.
    Defining a ``security breach'' is similar to defining all types of 
accidents. Notification and investigation thresholds are determined by 
the impact of the accident on the rail transit passengers, employees, 
system, and environment. Therefore, security breaches should be 
reported when thresholds under Sec.  659.33 and Sec.  659.35 have been 
met.
    We have not defined ``qualified professional'' or attempted to 
regulate minimum qualifications of the individuals involved at either 
the state oversight agency or rail transit agency level. The state and 
respective rail transit agency should identify and enforce the 
qualifications necessary to meet the requirements of this part. 
Finally, FTA has made a technical correction to paragraph (2) in the 
definition of ``rail fixed guideway system'' to reflect the wording of 
the current rule.

Withholding of Funds for Noncompliance

    FTA did not propose changes to its criteria for the withholding of 
funds for noncompliance. A few commenters recommended that FTA extend 
the judgment of noncompliance to include rail transit agencies, rather 
than just states. The commenters noted that some states have difficulty 
in enforcing part 659 requirements. Two commenters recommended that FTA 
also identify the process by which withheld funds would be released.
    FTA Response. FTA has clarified that funds will be released if the 
Administrator determines that an affected state has achieved compliance 
within two years in accordance with 49 U.S.C. 5330. We believe this 
provides an adequate level of detail for what is required.
    With regard to state difficulties enforcing the part 659 
provisions, FTA did not make changes. States are required to ensure 
compliance with the provisions of this part. Under 49 U.S.C. 5330, FTA 
does not have the authority to regulate state policies for managing 
noncompliance. We believe that each state needs to identify its own 
enforcement mechanism.

Designation of Oversight Agency

    FTA proposed changes to this section to clarify its intent about 
event(s) that must prompt oversight agency designation, as well as 
FTA's expectation that once designated the oversight agency will ensure 
that its program is fully implemented before the initiation of 
passenger service.
    One commenter recommended that FTA include a provision for when a 
state officially moves oversight responsibility to a ``new'' state 
organization.
    FTA Response. FTA has added language to this section, as well as to 
the initial submission element of Sec.  659.9(f) to require a new 
oversight agency to submit its initial submission to FTA for review.

Confidentiality of Investigation Reports and Security Plans

    FTA did not propose changes to this section.
    One commenter raised concerns over past and potential problems in 
obtaining accident information from rail transit agencies. The 
commenter explained that in their state, an existing Public Records Act 
makes accident information available to citizens. Because of the 
potential release of accident information, rail transit agencies have 
refused to provide their investigation information and reports to the 
oversight agency, citing their protection by the rail transit agencies' 
attorney-client privilege.
    One commenter recommended that security plan directives should 
mention other documents that should be controlled, such as drill 
coordination plans, training, and emergency management plans.
    FTA Response. FTA understands the need for and agrees that safety 
and security sensitive information should remain confidential. There is 
no language in this regulation that requires the state or rail transit 
agency to release information deemed safety or security-sensitive. FTA 
recommends that each state identify measures to be taken to ensure that 
safety and security sensitive information is not publicly disclosed.

Oversight Agency Program Standard

    The NPRM proposed removing the reference to the APTA Manual from 
the requirements for a state oversight agency system safety program 
standard. This is necessary to facilitate FTA's ability to modify or 
revise the minimum requirements of the program standard through the 
Federal regulatory process, subject to notice and public comment, 
rather than through the revision of an industry manual. In addition, 
FTA must address the role of the oversight agency in the implementation 
of safety and security program requirements not currently covered in 
the APTA Manual. Finally, during FTA's management of the State Safety 
Oversight Program, states have requested FTA to identify specific 
requirements that states can legislate and subsequently develop state-
specific program standards that, at a minimum, meet FTA's requirements, 
but also allow for greater flexibility in implementation.
    In its comments to the docket, APTA raised concern over FTA's 
proposed elimination of the APTA Manual reference. APTA suggested that 
by placing program standard element requirements in the rule, ongoing 
changes and revisions would be difficult to implement. In addition, 
APTA noted that retention of the APTA Manual would permit the continued 
transit industry and Federal government collaboration on important 
safety and security issues. APTA noted that by dropping the APTA Manual 
reference, there would be significant impacts on system safety, 
including the possibility that each state will implement these 
specifications differently and a national standard will not be 
achieved, and states will only move to meet the minimum requirements, 
not the intent of system safety. Finally, APTA suggested that its 
adoption of the system safety approach was intended to promote a self-
regulatory process, a process that would be put at risk if the NPRM 
were to proceed as written.
    One commenter suggested that FTA require the oversight agency to 
send a copy of its program standard to all managers of the rail transit 
agencies within its jurisdiction. Another commenter recommended FTA 
clarify the role of the oversight agency during construction and pre-
revenue phases.
    FTA Response. FTA has adopted the proposed rule provision. FTA does 
not think it is detrimental to remove the mandatory reference to the 
APTA Manual and that it is appropriate to include the program standard 
requirements in this rule. FTA does not believe that the rule processes

[[Page 22567]]

undermine system safety. The requirements in the rule for oversight 
agency program standard development and rail transit agency system 
safety program plan and security plan development is more comprehensive 
than the private sector standards. Additional sections have been 
included in the regulation to address NTSB recommendations, to 
strengthen the internal safety audit process, to improve coordination 
with the state oversight agency, and to formalize reporting 
requirements. By including all of the provisions in one place, it helps 
us meet our goals of maximizing the usability of our regulation and 
encouraging full compliance with its provisions. Further, this part 
allows for flexibility in application of safety and security 
principles, while maintaining the delicate balance of mandatory 
compliance for performance.
    Federal law, 49 U.S.C. 5330, does not address the authority to be 
provided to states to oversee rail transit capital projects before 
passenger operations commence. In 1995, FTA concluded that this lack of 
definition prevented application of the state safety oversight rule 
during the planning, design, and construction of New Starts projects. 
However, states with New Starts projects must be in compliance with 
each element of part 659 before the initiation of passenger operations. 
To facilitate compliance, the rule requires that states make their 
oversight agency designation prior to a rail transit agency application 
for formula grant money, or at the same time as the execution of a 
grant agreement between FTA and the grantee applicant for a New Starts 
project. Furthermore, FTA requires that each state submit documentation 
identified in Sec.  659.9(d) to FTA within sixty (60) days of 
designating its oversight agency.
    FTA believes that state oversight agency participation in a 
project's developmental phases is critical to the success of the State 
Safety Oversight Program and the state's ability to provide effective 
oversight during operations. FTA supports states' efforts to 
participate during pre-operation by providing a funding mechanism 
through its New Starts projects process that allows capital grant 
monies to be used for the initial state safety oversight agency program 
development.
    For those capital projects in states with existing rail transit 
agencies and safety oversight agencies and where the rail system is 
being modified, extended, or rehabilitated, FTA expects each oversight 
agency to participate in the pre-operation phases under the 
requirements of this part (Sec.  659.15 and Sec.  659.19(g) and (h)), 
but FTA funds may not be used.
    Furthermore, there is no requirement in this part that limits a 
state's ability to extend its safety oversight in all phases of project 
development. FTA encourages this practice and a handful of states 
currently have authority to conduct their safety and security oversight 
program during the planning, design and construction of a New Starts 
system.

System Safety Program Plan

    In lieu of the APTA Manual reference, the NPRM laid out the minimum 
safety program elements from which states can ensure rail transit 
agencies address, as a minimum, their system safety program plans. 
FTA's requirements represent a minimum standard that must be addressed 
by each rail transit agency and enforced by the state oversight agency. 
The NPRM retained the requirement for state oversight agencies to 
review and approve a rail transit agency's system safety program plan.
    One commenter requested a clarification of the meaning of 
``approved''--whether it meant the system safety program plan would be 
approved by the oversight agency or the rail transit agency. Another 
commenter suggested that the regulation should require a formal letter 
of approval from the state oversight agency, accompanied by the 
checklist used to review the rail transit agency's system safety 
program plan and security plan.
    FTA received one comment proposing an ``hours of service'' 
requirement, limiting the number of hours that safety sensitive 
employees can work and providing a minimum number of required hours 
off.
    Finally, two commenters suggested removing or combining specific 
sections of the system safety program plan minimum elements to reduce 
what the commenters believed to be redundant--namely removing Sec.  
659.19(s) and combining Sec.  659.19(g) and Sec.  659.19(r) under the 
heading of ``System Modifications and Configuration Control.''
    FTA Response. The final rule requires that the oversight agency 
must review and approve the rail transit agency's system safety program 
plan. Furthermore, this section requires that the oversight agency, 
using a checklist developed by the oversight agency, review the rail 
transit agency's system safety program plan against the requirements of 
this Part, in addition to the state's own program standard. FTA 
recommends that oversight agencies have sufficient authority to carry 
out their role; this includes the responsibility for the review and 
approval of rail transit agency safety and security plans. FTA intends 
that oversight agencies include in their review and approval process 
the rail transit agency's operating and maintenance procedures, 
rulebook, and special orders.
    FTA proposed, and maintains, that the oversight agency issue a 
formal letter of approval to the rail transit agency after reviewing 
the system safety program plan and security plan. FTA agrees with the 
commenter that the oversight agency should include in its formal 
submittal to the rail transit agency the checklist used to conduct the 
system safety program plan and security plan review.
    FTA did not propose an ``hours of service'' requirement in this 
part. FTA does not have the authority to regulate in this area.

System Security Plan

    The NPRM proposed minimum requirements for an agency security plan 
that must be maintained as a separate document.
    One commenter recommended that security breaches and other security 
issues such as threat and vulnerability assessments should be covered 
similarly to safety issues. Another commenter recommended that FTA 
modify the security audit requirement so that such audits are conducted 
periodically and by qualified professionals.
    One commenter suggested that the rule require a security plan that 
includes a description of a positive ID program identifying all 
contractors, visitors and employees requiring access to the system or 
facilities, and tracks all security related IDs, uniforms, or equipment 
that may be used as part of the positive ID program.
    Finally, two commenters recommended that FTA not require the 
oversight agency to conduct an ``on-site'' review of the rail transit 
agency security plan.
    FTA Response. While FTA has not provided the same level of detail 
relating to the security management processes identified by the 
commenter, rail transit agencies are required to notify and investigate 
security breaches that meet the accident notification and investigation 
thresholds in Sec.  659.33 and 35.
    While FTA agrees with the importance of positive ID programs and 
other access control measures to enhance security at rail transit 
systems, FTA does not intend that this rule specify the type of 
security strategy to be used by the rail transit agency and monitored 
by the state oversight agency.

[[Page 22568]]

Conversely, there is no language in this rule that prevents a rail 
transit agency from using such a strategy and, as noted above, FTA 
encourages rail transit agencies to monitor access to key areas of the 
rail system.
    In the NPRM ``Section-by-Section Analysis'' FTA proposed that the 
oversight agency conduct its review of the rail transit agency's 
security plan on-site at the rail transit agency. FTA agrees with the 
commenters who suggested that this requirement places an unnecessary 
burden on the oversight agencies in the conduct of their review. 
Therefore, we have modified the Final Rule to require that the rail 
transit agency must submit its security plan to the oversight agency if 
the state has established protocols to protect the security plan from 
public disclosure. If the state cannot provide these protections, the 
oversight agency must review the security plan on-site at the rail 
transit agency. Finally, FTA intends that state oversight agencies 
always identify in-house representatives or contract personnel whose 
qualifications are sufficient to review a rail transit agency's system 
safety program plan and security plan.

Rail Transit Agency Review of its System Safety Program Plan

    The NPRM proposed a requirement for the oversight agency to require 
the rail transit agency to conduct an annual review of its safety and 
security plans.
    One commenter requested clarification regarding the level of system 
modification that would require resubmission of the rail transit 
agency's system safety program plan.
    FTA Response. It is the responsibility of the state oversight 
agency to develop the criteria for which rail transit agency system 
modifications prompt the resubmission and consequent review of the 
system safety program plan.

Rail Transit Agency Internal Safety and Security Reviews

    FTA proposed a section that requires the oversight agency to 
require the rail transit agency to develop and document a process for 
performing on-going internal safety and security reviews.
    A commenter recommended FTA require a rail transit agency general 
manager to sign off on all conducted internal safety and security 
audits to ensure management is aware of internal operations and 
processes, and that they are effective. Three commenters voiced concern 
over outstanding issues at time of certification, suggesting that the 
requirement of the rail transit agency's general manager to certify 
compliance in its annual report does not address the instance when a 
rail transit agency may not be in full compliance with its system 
safety program plan, but is still required to certify as such. One of 
these commenters proposed specific language indicating certification by 
the agency's chief executive officer.
    Another commenter requested that FTA shorten the time period 
requirement for notifying state oversight agencies of internal safety 
audits from 30 days to 10 days. Three commenters recommended 
lengthening the time requirement for notifying state oversight agencies 
of scheduled internal safety audits, 45 days and 60 days. Finally, one 
commenter suggested that the internal safety audit process not be 
``reset'' to coincide with the implementation of the new rule, inasmuch 
as certain transit operators might currently be dealing with safety 
issues in the midst of their audit cycles.
    FTA Response. We believe that the Sec.  659.27 proposal that a 
certification of compliance issued by the rail transit agency general 
manager or executive director be included with the annual report 
compiled by the rail transit agency, documenting its internal safety 
audit activities, addresses the commenter's request for general 
management endorsement. FTA also agrees that the general manager should 
not be required to certify compliance if internal safety audits have 
identified areas of noncompliance. Consequently, FTA has added the 
condition that in those cases where the rail transit agency is not in 
compliance with its system safety program plan--or security plan--the 
chief executive must identify those areas of noncompliance for the 
oversight agency, accompanied with a list of activities the rail 
transit agency will take to achieve compliance.
    We have not reduced the timeframe for rail transit agency 
notification to the state before the conduct of internal safety audits 
from at least thirty (30) days to ten (10) days. Internal safety audits 
are the means by which a rail transit agency can assess effectiveness 
of its own safety program and how well it is being implemented agency-
wide. A rail transit agency must be able to develop a schedule for 
these audits and make the schedule available to its oversight agency 
thirty (30) days before conducting the internal review. Other 
commenters requested the timeframe be expanded to forty-five (45) or 
sixty (60) days. FTA believes that thirty (30) days is sufficient for 
oversight agency notification since the oversight agency is not 
required--but strongly encouraged--to participate in the internal 
safety review process.
    FTA agrees with the last commenter and will not require the 
internal safety audits to be ``reset.'' Instead, the rail transit 
agency should continue its cycle of audits in compliance with all other 
terms of this rule, regardless of the date this rule goes into effect. 
It should be noted, however, that any changes to internal safety audit 
procedures or processes as the result of this rule must be implemented 
at the date this rule goes into effect.

Oversight Agency Safety and Security Reviews

    FTA proposed that the oversight agency must conduct an on-site 
review of the rail transit agency's safety and security plans every 
three years or in an on-going manner.
    One commenter requested that the regulation outline what should be 
included in the state oversight agency safety and security review 
report. Another commenter recommended that the proposed rule be amended 
to clarify that the state oversight agency reserves the right to 
conduct an on-site review more frequently than every three years. This 
commenter also recommended adding the following language, ``[t]he 
oversight agency must prepare and issue a report containing findings, 
recommendations, corrective actions, and the rail transit agency's 
response to each finding that requires additional action. The rail 
transit agency's response shall set a time frame to implement the 
corrective actions resulting from the review. The report, at a minimum, 
must include an analysis of the efficacy of the system safety program 
plan and a determination of whether it should be updated.''
    FTA Response. The oversight agency should be able to determine the 
extent of its three-year safety reviews, to effectively evaluate rail 
transit agency compliance with state safety oversight requirements. FTA 
has shared checklists with oversight agencies and will continue to 
facilitate information exchange and coordination within the community. 
Many states have slightly different requirements within their 
respective program standards. However, FTA disagrees that this part 
should identify each element of the safety or security review since it 
could limit oversight agencies in their approach to the three-year 
safety review.
    There is no language in this requirement that precludes the 
oversight agency from establishing the right to conduct an on-site 
review of the rail transit agency more frequently than every three 
years. FTA agrees that the reviews may be conducted in an ``ongoing 
manner.''

[[Page 22569]]

    FTA disagrees with the commenter that additional language is needed 
to address oversight findings from the three-year safety or security 
review. Section 659.37 requires that rail transit agencies develop 
corrective action plans to address three-year review findings. 
Subsequently, the corrective actions must be implemented and tracked 
according to Sec.  659.37 requirements.

Hazard Management Process

    FTA proposed that each rail transit agency develop and implement a 
hazard management process that has been reviewed and approved by the 
state oversight agency. Two comments were received. One commenter 
agreed with FTA's process while another recommended that FTA delete the 
hazard management process section and make reference to it only in the 
proposed Sec.  659.13 (system safety program standard) in the NPRM.
    FTA Response. We disagree with the commenter who suggested 
referencing the hazard management process solely in the system safety 
program standard section. The hazard management process is central to 
system safety and warrants its own section within this rule.

Accident Notification and Investigation

    In the NPRM, FTA proposed revisions to the definition of accident 
to provide greater consistency with the notification and investigation 
requirements used by the NTSB as well as reporting thresholds 
established by FTA's NTD. Further, FTA proposed defining accident in 
relation to the activities required by the rail transit agency and 
oversight agency after the occurrence of an event deemed an accident. 
FTA proposed in the NPRM that the oversight agency must require the 
rail transit agency to notify the oversight agency within two (2) hours 
of any event involving a rail transit vehicle or taking place on rail 
transit-controlled property where one or more of the following occurs:
    (1) A fatality, where an individual is confirmed dead within thirty 
(30) days of a transit-related incident, excluding suicides and deaths 
from illness;
    (2) Injuries requiring immediate medical attention away from the 
scene for two or more individuals;
    (3) Property damage to rail transit vehicles, non-rail transit 
vehicles, other rail transit property or facilities that equals or 
exceeds $25,000;
    (4) An evacuation due to life safety reasons; or
    (5) A main-line derailment.
    In addition the oversight agency must require rail transit agencies 
that share track with the general railroad system and are subject to 
the Federal Railroad Administration notification requirements to notify 
the oversight agency within two (2) hours of an incident for which the 
rail transit agency must notify the Federal Railroad Administration.
    A majority of the commenters addressed the definition or thresholds 
for accident notification and investigation in several ways. Two 
commenters suggested that the two-hour notification requirement adds an 
unreasonable burden on the rail transit agency, especially during a 
catastrophic event, and recommended that FTA change the time period to 
four hours. One commenter recommended that FTA further define what 
constitutes ``notification,'' questioning whether or not an individual 
from the state oversight agency should be required to be available to 
receive the notification twenty-four (24) hours a day, seven (7) days a 
week or if it is sufficient that a message is left or fax is sent 
within the two (2) hour window. The commenter suggested that this might 
influence state resource allocation.
    Several commenters expressed concern over the definition of 
fatality, noting that a fatality may be difficult to ``[confirm] within 
thirty (30) days of a transit incident,'' given increased constraints 
on retrieving patient information due to the Health Insurance 
Portability and Accountability Act of 1996 (HIPAA). A few commenters 
suggested that the 30-day confirmation period should be removed, while 
one commenter suggested it be reduced to twenty-four (24) hours.
    Several commenters recommended that state oversight agencies be 
notified of all fatalities, including suicides. Several of these 
commenters noted that the determination of cause of death might not be 
made within the first two hours after the incident. Other commenters 
noted that FRA and NTSB do not make distinctions between a fatality and 
a suicide, and that a situation may occur where the NTSB or FRA may be 
notified of a fatality but the state oversight agency would not.
    Relating to the notification threshold for injuries, some 
commenters recommended that FTA maintain the current definition, which 
requires notification by the rail transit agency when an incident 
occurs resulting in a single injury instead of ``two or more persons'' 
in the NPRM. These commenters suggested that under FTA's proposed 
threshold for injury, an incident in which a person is struck by a 
train and is transported to the hospital would not be reported to the 
oversight agency. One commenter also noted that FTA's NTD requires the 
reporting of one person injured in a collision occurring on a rail 
right-of-way. Other commenters suggested that while the NPRM attempted 
to align definitions with NTD, in some areas conflicts remain.
    Several commenters objected to the reduction in the property damage 
threshold from $100,000 in the current rule to $25,000 in the NPRM. 
Many of these commenters indicated that in lowering the threshold, rail 
transit agencies and state oversight agencies would face an unnecessary 
increase in notifications, and there would be an increased burden in 
investigating and tracking these accidents. Most commenters recommended 
that FTA maintain the $100,000 property damage notification threshold. 
One commenter suggested that the qualification of property damage to 
only ``rail transit vehicles, non-rail transit vehicles, [or] other 
rail transit property or facilities'' limits applicable items, and that 
since the current rule includes all property damage and provides the 
necessary information, it should be retained.
    Several commenters proposed that FTA either delete the definition 
of individual for threshold purposes, or make it broader to ensure that 
pedestrians are included. Another commenter suggested that the term 
``person'' be used, as no fatality should go unreported.
    Some commenters recommended that FTA either add a definition for 
``medical attention'' or clarify the term ``injury,'' to clarify that 
the intent of the rule is not to require immediate notification for 
very minor items.
    Some commenters objected to the proposed location of the incident 
``involving a rail transit vehicle or taking place on rail transit-
controlled property,'' suggesting that FTA should limit the requirement 
for notification to those instances where an event has occurred only 
when it involves the operation of the rail transit vehicle, and not in 
such places as offices, parking lots and other areas that do not 
involve rail transit operations.
    In reference to requirements for accident investigation, Sec.  
659.29, FTA proposed, ``[t]he oversight agency must investigate, or 
cause to be investigated, at a minimum, any event involving a rail 
transit vehicle or taking place on rail transit-controlled property 
meeting the fatality, injury, or property damage thresholds identified 
in Sec.  659.27(a).'' Relating to the threshold for investigations, one 
commenter suggested that the NPRM creates a large investigative 
workload. Some

[[Page 22570]]

commenters recommended that FTA also make a distinction between FTA-
reportable (those meeting the fatality, injury, and property damage 
thresholds for notification) and non-reportable (namely, the evacuation 
and main-line derailment thresholds), to ensure that the non-reportable 
incidents are still logged, reviewed and tracked for possible 
identification of trends and patterns.
    Additionally, the NPRM proposed, ``(b) The oversight agency must 
use approved investigation procedures that have been submitted to FTA 
as required in the initial submission or annual submission'' and ``(c) 
In the event the oversight agency designates the rail transit agency to 
conduct investigations on its behalf, it must do so formally and 
require the rail transit agency to use investigation procedures that 
have been formally approved by the oversight agency.''
    Some commenters recommended that the required investigation process 
for the analysis of probable or multiple causal determinations be 
standardized across the industry. Another commenter recommended that 
the state oversight agency's procedures include the rail transit 
agency's own investigation of the accident.
    The NPRM proposed, ``(d) Each investigation must be documented in a 
final report that includes a description of investigation activities, 
identified causal factors, and a corrective action plan. (1) The final 
investigation report must be submitted to the oversight agency in a 
format and timeframe specified by the oversight agency. (2) The 
oversight agency must review and formally approve each final 
investigation report. (3) The oversight agency shall have the authority 
to require periodic status reports that document investigation 
activities and findings in a time frame determined by the oversight 
agency.''
    One commenter objected to the requirement for the state oversight 
agency to approve the rail transit agency investigation report, 
indicating that the investigating party must be given autonomy for 
findings in the final report and that any state comments should be made 
during the drafting phase. Another commenter suggested that the 
proposed rule for accident investigations relied on transparency 
between the agencies and that the rail transit agencies must release, 
or make available, all essential information to the state oversight 
agency in order for the state to adequately review the determination of 
cause(s).
    Finally, one commenter recommended that FTA require sending the 
final investigation report to the rail transit agency's executive 
director or general manager.
    FTA Response. In light of the comments submitted relating to the 
accident notification and investigation sections of the rule, FTA has 
made changes to these requirements. For instance, we will require the 
rail transit agency to notify an oversight agency of all fatalities, 
and will not exclude suicides from the notification process. We agree 
with those commenters who suggested that the cause of death might not 
be readily apparent and that it should not be the role of the rail 
transit agency or state oversight agency to make that determination. In 
addition, suicides on urban rail systems are a visible problem and the 
oversight agency should be notified when they occur. Safety issues may 
be involved in these incidents, and corrective actions could 
potentially prevent additional suicides.
    In reference to the notification threshold for a fatality, FTA 
disagrees with the commenters who noted that it might be difficult to 
track the status of an individual for thirty (30) days to determine 
whether or not the individual has been confirmed dead, thus requiring 
notification of the state oversight agency and compliance with 
subsequent investigation and corrective action plan requirements. 
Furthermore, FTA believes that the rail transit agency's 
representative(s) responsible for risk management, legal duties, or 
claims will either be notified of the confirmed death or will track 
status information. In addition, rail transit agencies must currently 
track this information for NTD reporting. For these reasons we did not 
revise the 30-day tracking period.
    FTA agrees with commenters indicating that noteworthy incidents, 
such as a collision between a train and a person would go unreported 
under the notification threshold for two (2) or more injuries in the 
NPRM. Furthermore, we agree that there are still discrepancies between 
notification and investigation thresholds in the NPRM and those of the 
data reporting thresholds for ``major events'' within the NTD Program 
and notification thresholds for NTSB. While we believe that minor 
inconsistencies will remain, we have made changes to the accident 
notification and investigation thresholds in an effort to increase the 
coordination between the above stated programs. Most significantly, FTA 
has changed the accident notification and investigation thresholds to 
mirror all eight (8) NTD ``Major Event'' thresholds, not just the first 
five (5) thresholds identified in the NPRM. In addition to the five (5) 
thresholds identified in the NPRM, rail transit agencies are now also 
required to notify state oversight agencies in the event of a mainline 
derailment, a collision with person(s) on a rail right-of-way, and a 
collision between a rail transit vehicle and another rail transit 
vehicle or a transit non-revenue vehicle.
    We agree with several commenters who requested greater clarity for 
key definitions within the accident notification and investigation 
thresholds, namely individual and medical attention. We have more 
clearly identified the definition of ``individual'' to include 
pedestrians and other persons. While there are distinctions between the 
types of individuals, FTA intends that all persons who suffer injuries 
that require medical attention away from the scene of the incident or 
end in fatality are individuals under this rule. Historically, FTA 
excluded the reporting of fatalities and injuries of employees and 
trespassers under the State Safety Oversight Program.
    FTA agrees with one commenter who recommended FTA clarify that the 
intent of this rule is not to require state safety oversight agency 
notification for very minor injuries. For consistency, the use of 
``immediate medical attention'' in this rule should be interpreted as 
it is used under FTA's NTD program. The following is an excerpt from 
the NTD reporting manual and clarifies FTA's intent within this rule:

    The definition of injury requires immediate medical attention 
away from the scene. Immediate medical attention includes, but is 
not limited to, transport to the hospital by ambulance. If an 
individual is transported immediately from the incident scene to a 
hospital or physician's office by another type of emergency vehicle, 
by passenger vehicle, or through other means of transport, this is 
also considered an injury. An individual seeking medical care 
several hours after an incident or in the days following an incident 
is not considered to have received immediate medical attention. In 
cases that are less clear-cut, reporters should apply their judgment 
in determining whether the injury sustained caused the individual to 
immediately seek medical attention.
    The medical attention received must be at a location other than 
the location at which the incident occurred. The intent of this 
distinction is to exclude incidents that only require minor first 
aid or other assistance received at the scene. This distinction is 
not, however, intended to be burdensome for the [rail] transit 
agency. It is not a requirement that an agency follow-up on each 
person transported by ambulance, for example, to ensure that they 
actually received medical attention at the hospital. It is 
acceptable to count each person immediately transported by ambulance 
as an injury. If, however, an agency representative does choose to 
follow-up with the hospital and finds that, though an individual was 
transported to the hospital, he did not receive any medical 
attention, this

[[Page 22571]]

individual does not need to be reported as an injury.''

    We disagree with commenters suggesting that the two-hour 
notification requirement does not provide an adequate amount of time 
for the rail transit agency to notify the oversight agency, especially 
during catastrophic events. While we understand that a catastrophic 
event can overwhelm rail transit agency personnel, we believe that two 
(2) hours is reasonable and mirrors requirements by the NTSB, and may 
provide more time than the ``immediate notification'' required by FRA.
    In reference to the format in which notifications are made and 
state oversight agency personnel availability, we believe that these 
decisions are best left to the state to identify and define. FTA 
believes it is reasonable to expect state oversight agency and rail 
transit agency representatives to identify a practical process that 
ensures the oversight agency is notified appropriately and can carry 
out subsequent activities.
    We agree with commenters who noted that the qualifying of property 
damage as applying only to ``rail transit vehicles, non-rail transit 
vehicles, [or] other rail transit property or facilities'' limits 
applicable items. To clarify FTA's intent, FTA has removed the 
qualifiers and requires notification when an accident equals or exceeds 
$25,000 in total accident damage. Consistent with NTD and NTSB 
requirements, property damage to both transit and non-transit property 
should be included in the estimate. While many commenters objected to 
the reduction in the property damage threshold, we believe that the 
$25,000 notification and investigation threshold is appropriate and 
reflects the current requirements of the NTSB.
    FTA disagrees with recommendations to constrain the applicability 
of the accident notification and investigation thresholds to only those 
incidents ``involving the operation of a transit vehicle,'' ignoring 
incidents that occur in parking lots, stations, and other areas of rail 
transit property and responsibility. We believe that this rule limits 
notification and investigation to only the most serious events that 
might occur on rail transit property. As such, we believe that in 
accordance with the intent of state safety oversight, these events 
should be reported to the state in a timely manner to ensure the 
state's ability to investigate and require corrective actions, as 
required under Section 5330 of the enabling legislation. Furthermore, 
FTA has interpreted the state safety oversight legislation to include 
security considerations. In so doing, FTA requires the rail transit 
agency to report security incidents that meet the notification 
thresholds to the oversight agency. We believe that passenger safety 
and security are often interrelated and each passenger should expect to 
be free from danger, unintentional or intentional, to the extent that 
it is reasonably practicable. As such, we believe that efforts by the 
rail transit agency, in accordance with state oversight, should be 
applied system-wide and not limited to only specific passenger or 
vehicle operations.
    As mentioned above, accident investigation thresholds have been 
changed to accurately reflect thresholds identified in the NTD major 
event category. FTA disagrees with the commenter who suggested that the 
NPRM creates a large investigative workload. Under the old definition 
of accident, states were required to investigate all single person 
events in which an individual was treated for injuries away from the 
scene (the majority of these events were slips, trips and falls in 
transit stations and vehicles). The new accident investigation 
thresholds actually lessen the investigative burden by only requiring 
investigation of single person events in which there has been a train/
person collision or a collision between a rail transit vehicle and 
another rail transit vehicle or a transit non-revenue vehicle. Some 
commenters expressed concern over the exclusion of all single person 
events meeting the injury threshold under the old rule. FTA requires 
this threshold to be identified in the hazard management process 
developed by the rail transit agency. We believe that an effective 
identification process within a hazard management resolution program 
would include single person events as a source for hazards or potential 
hazards. We believe that the changes are necessary to capture incidents 
with serious consequences. FTA acknowledges that while one set of 
thresholds will not necessarily accommodate different modal 
considerations or state and local resource allocation and burden, they 
support our intent to standardize the reporting and investigation of 
accident causal factors and mitigating activities, and allow us to 
identify proactive activities that prevent fatalities, serious injury 
and major system loss. Finally, we believe it is imperative that 
oversight agencies are notified of accidents within a timeframe 
consistent with that of the NTSB notification requirement.
    FTA has clarified the investigation reporting requirements to 
ensure that rail transit agency investigation reports maintain their 
autonomy, while assuring the state's right to conduct its own 
investigation. However, FTA kept the requirement for state oversight 
agencies to review and approve corrective action plans.
    With reference to the requirements for state approval of 
investigation reports, FTA agrees with the commenter recommendation to 
not require such approval. FTA did not intend the state oversight 
agency to formally review and approve the rail transit agency's 
investigation report. In those instances where the oversight agency has 
authorized the rail transit agency to conduct an investigation on its 
behalf, FTA intends that the oversight agency review and approve the 
report for the oversight agency's own internal process, not for the 
rail transit agency. This investigation report is now the 
responsibility of the oversight agency, which must either formally 
approve it or amend the report prior to adopting it as its final 
investigation report.
    FTA also allows the oversight agency to contract for this service 
and/or allow the rail transit agency to conduct some of the 
investigations. For each accident that meets the investigation 
thresholds, the oversight agency must approve the investigation report. 
They must also require the rail transit agency to develop corrective 
action plans to address accident findings. These plans must then be 
reviewed and approved by the oversight agency. In addition, the 
oversight agency must establish a process to resolve any disagreements 
in the event that the two agencies cannot reach an agreement on the 
corrective action plan.
    FTA disagrees with the recommendation to require the submission of 
the final investigation report to the rail transit agency's chief 
executive. While FTA encourages inter and intra-agency communication 
and coordination, we did not specify the distribution list for the 
final investigation report. However, there is no language in this part 
that limits the rail transit agency safety manager from providing the 
chief executive with a copy of the investigation report, and FTA 
encourages this level of intra-agency coordination.
    Finally, FTA recommends that rail transit agencies and oversight 
agencies develop investigation procedures and apply them consistently. 
However, FTA did not require standardization of the investigation 
process across the industry as some commenters recommended. We believe 
that there are different, yet equally effective, methods of conducting 
accident investigations. Furthermore, we believe it is the 
responsibility of rail

[[Page 22572]]

transit agencies and their state oversight agency counterparts to 
determine which investigative methodology is most effective.

Corrective Action Plans

    FTA proposed that oversight agencies review and formally approve 
corrective action plans.
    Two commenters recommended that FTA should not require state 
oversight agencies to approve corrective action plans. Three commenters 
suggested that FTA require corrective actions plans be developed after 
safety and security internal audits and any annual reviews that may be 
performed by the rail transit agency.
    One commenter proposed a clarification change in the language from 
``* * * its process for the review and approval of a corrective action 
plan,'' to ``* * * the Transit Agency's process for the review and 
approval of the corrective action plan.''
    FTA Response. FTA disagrees with commenters who suggested that FTA 
not require oversight agency review and approval. Given that oversight 
agency approval is only necessary for corrective actions developed 
resulting from three-year safety and security reviews and the results 
from accident investigations, FTA believes that oversight agency 
participation is not intrusive or overbearing. State oversight agencies 
are required by the enabling legislation to investigate and approve 
corrective actions, and FTA believes that an independent assessment of 
the developed corrective actions not only meets the intent of safety 
oversight, but also provides the necessary objectivity to ensure that 
rail transit agencies have prioritized safety and security activities 
to meet the most critical and pressing needs.
    FTA also disagrees with the commenters that recommend developing 
corrective action plans to address findings from rail transit agency 
internal audits. FTA believes that some level of autonomy is necessary 
when the rail transit agency conducts its own internal safety and 
security audit process. We recommend that the state oversight agency 
work with the rail transit agency to identify the criteria for which 
findings from internal safety and security audits are subject to the 
hazard identification and subsequent resolution process.

Oversight Agency Reporting to the Federal Transit Administration

    One commenter suggested spreading the reporting requirements 
specified in the NPRM over a two-year period so that states operating 
under a deficit are not unnecessarily burdened. Two commenters 
requested that FTA allow a minimum one-year grace period to states for 
implementation of new regulations. One of these commenters went on to 
recommend that the rule identify the records required to be maintained 
and specify the required retention periods.
    One commenter recommended that the rule explicitly specify the 
requirements of the initial submission, including its program standard, 
procedures or process for reviewing and approving the rail transit 
agencies' system safety program plans, investigatory procedures, and 
criteria for the development of the rail transit agencies' corrective 
action plans to correct, eliminate, minimize or control investigated 
hazardous conditions. The commenter went on to recommend that the rule 
explicitly name the types of periodic submissions that FTA may request.
    Three commenters suggested that the rule provide a list of any 
records that must be maintained by the oversight agency and specify the 
required retention periods. Two of those commenters stated that the 
rule should also provide the same information for transit agencies.
    Finally, one commenter suggested that reporting requirements were 
too burdensome to states and FTA should identify a mechanism to improve 
the effectiveness of annual reporting without affecting the quality of 
reporting.
    FTA Response. FTA asked commenters to make recommendations in 
reference to the timeframe for requiring initial submissions, once the 
state safety oversight rule takes effect. Two commenters recommended 
providing one year from the rule's date of effectiveness to achieve 
compliance. One commenter suggested that one year may be too ambitious 
and requested that states be allowed extensions if needed, due to 
legislation issues. FTA agrees and will allow one year from the rule's 
date of effectiveness for states to comply with rule requirements. 
However, in those cases where state legislatures may only meet once 
every two years, FTA may entertain an exception to the compliance date. 
FTA will address this subject through future guidance.
    FTA expects that each oversight agency will submit its entire 
program standard and all program procedures developed to support the 
oversight activities required by this rule. This includes all 
procedures associated with the oversight agency's implementation of its 
program identified in Sec.  659.19 and each procedure that requires 
action by the oversight agency. FTA disagrees that we should identify 
every procedure to be submitted and believes that it is not necessary 
to burden the rule with what may be redundant requirements, without 
greater justification.
    While one commenter presented an exhaustive list of information FTA 
may request as part of a periodic submission, FTA believes it is 
unnecessary to identify each potential submission in the text of the 
rule. Instead, FTA will identify needed material on a case-by-case 
basis and work with the oversight agency to obtain needed material. 
Similarly, FTA decided not to identify records that the oversight 
agency should maintain. We believe that the oversight agency should 
maintain the necessary records for the effective development, 
management, and implementation of its oversight duties.
    FTA is requiring electronic data collection for oversight agency 
reporting. FTA agrees that the quality of information collected is of 
the greatest importance.

Conflict of Interest

    The NPRM proposed that the oversight agency must prohibit a party 
or entity from providing services to both the oversight agency and the 
rail transit agency, when a conflict of interest exists.
    A few commenters suggested that FTA either define conflict of 
interest in the rule, or provide a clarification of the scope of 
services to be performed by a contractor. One commenter also suggested 
that this might limit the number of contractors eligible to compete for 
proposals.
    FTA Response. The intent of state safety oversight is to establish 
an independent agency to oversee the implementation of safety and 
security programs by the rail transit agency. The independent agency 
must adhere to the requirements in this rule and ensure that any rail 
transit agency within its jurisdiction also adheres to these 
requirements. FTA believes that the state designated agency must 
function without prejudice; this extends to procuring a contractor to 
perform oversight activities. The selected contractor must be able to 
perform its duties on behalf of the state with the same level of 
impartiality, without conflict of interest. FTA believes it is in the 
best interest of the State Safety Oversight Program to take steps to 
ensure that contractors can effectively perform their duties without 
bias. FTA also believes that each state is in a better position to 
define the conflict of interest provisions necessary to meet the intent

[[Page 22573]]

of state safety oversight while contracting for services.

VI. Section-by-Section Analysis

Purpose (Sec.  659.1)

    This section explains that FTA is implementing the requirements of 
49 U.S.C. 5330, which requires a state to establish an agency to 
oversee the safety of rail fixed guideway systems. This rule directs 
the oversight agency to develop a program standard, including a 
security element, and to require the rail transit agency to develop a 
security plan and a separate system safety program plan that complies 
with the program standard and requirements of this rule. In addition, 
the oversight agency must conduct safety and security reviews and 
ensure the conduct of accident and hazard investigations. The oversight 
agency must also ensure that corrective action plans are developed and 
implemented to address findings from accident and hazard investigations 
and track implementation to resolution. The oversight agency must 
ensure that the rail transit agency implements its system safety 
program plan and security plan effectively.

Scope (Sec.  659.3)

    This section explains that the rule applies only to states with 
rail fixed guideway systems, as defined in this part.

Definitions (Sec.  659.5)

Contractor
    ``Contractor'' means an entity that performs tasks required by this 
part on behalf of the oversight or ``rail transit agency.'' The ``rail 
transit agency'' may not be a ``contractor'' for the ``oversight 
agency.''
Corrective Action Plan
    ``Corrective action plan'' means a plan developed to set forth the 
actions the ``rail transit agency'' will take to minimize, control, 
correct, or eliminate ``hazards,'' and the schedule for implementation 
for those actions.
FRA
    ``FRA'' means the Federal Railroad Administration, an agency within 
the U.S. Department of Transportation.
FTA
    ``FTA'' means the Federal Transit Administration, an agency within 
the U.S. Department of Transportation.
Hazard
    ``Hazard'' means any real or potential condition (as defined in the 
``rail transit agency's'' hazard management process) that can cause 
injury, illness, or death; damage to or loss of a system, equipment or 
property; or damage to the environment.
Individual
    ``Individual'' means a passenger; employee; contractor; other rail 
transit facility worker; pedestrian; trespasser; or any person on rail 
transit-controlled property.
Investigation
    ``Investigation'' means the process used to determine the causal 
and contributing factors of an accident or hazard, so that actions can 
be identified to prevent recurrence. The oversight agency is ultimately 
responsible for the conduct of the investigation and the resulting 
findings. An investigation may be conducted by an entity acting on 
behalf of the oversight agency, providing the procedures to be used 
during the investigation have been reviewed and approved by the 
oversight agency and submitted to FTA. If the rail transit agency 
conducts the investigation on behalf of the oversight agency, the 
oversight agency must either adopt the findings from the investigation 
or successfully negotiate any disputes that result from the findings. 
In the event there is a dispute over investigation findings, if there 
is no resolution, the oversight agency must either conduct its own 
investigation or amend the rail transit agency findings with its 
opinion. There must not be conflicting corrective actions to address 
investigation findings.
New Starts Project
    ``New Starts Project'' means any rail fixed guideway system funded 
under FTA's 49 U.S.C. 5309 discretionary construction program.
Oversight Agency
    ``Oversight Agency'' means the entity, other than the rail transit 
agency, designated by the state or several states to implement this 
part.
Passenger
    ``Passenger'' means a person who is on board, boarding, or 
alighting from a rail transit vehicle for the purpose of travel. The 
intent of this definition is to make a distinction between individuals 
that are physically on the rail transit vehicle, or those in the 
process of entering or leaving the rail transit vehicle, and non-
passengers such as pedestrians or trespassers as categorized under the 
National Transit Database (NTD).
Passenger Operations
    ``Passenger operations'' means the period of time commencing when 
any aspect of rail transit agency operation is initiated with the 
intent to carry passengers. In the previous rule, there was confusion 
over the definition of revenue service; did it mean the period the 
agency opened its doors to the public, or simply when a passenger 
boarded the first rail transit vehicle of the day. In this rule, FTA 
uses the former definition. Once the rail transit agency initiates its 
first action with the intent to carry passengers, it is considered to 
be in passenger operations.
Program Standard
    ``Program standard'' means a written document developed and adopted 
by the oversight agency, that describes the policies, objectives, 
responsibilities, and procedures used to provide rail transit agency 
safety and security oversight.
Rail Fixed Guideway System
    ``Rail fixed guideway system'' means any light, heavy, or rapid 
rail system, monorail, inclined plane, funicular, trolley, or automated 
guideway that:
    (1) is not regulated by the Federal Railroad Administration; and
    (2) is included in FTA's calculation of fixed guideway route miles, 
or receives funding under FTA's formula program for urbanized areas (49 
U.S.C. 5336); or
    (3) has submitted documentation to FTA indicating its intent to be 
included in FTA's calculation of fixed guideway route miles to receive 
funding under FTA's formula program for urbanized areas (49 U.S.C. 
5336).
Rail Transit Agency
    ``Rail transit agency'' means an entity that operates a rail fixed 
guideway system. If the grantee has contracted out operations and 
maintenance of the rail fixed guideway system, it maintains full 
accountability to ensure that all requirements identified in the 
oversight agency's program standard and this rule are met.
Rail Transit-Controlled Property
    ``Rail transit-controlled property'' means property that is used by 
the rail transit agency and may be owned, leased, or maintained by the 
rail transit agency. FTA does not distinguish between different types 
of rail transit-controlled property, meaning that an accident meeting 
the notification and investigation thresholds of this section must 
prompt notification of the oversight agency, regardless of where it 
occurred on rail transit-controlled property.

[[Page 22574]]

Rail Transit Vehicle
    ``Rail transit vehicle'' means the rail transit agency's rolling 
stock. This definition includes vehicles used for carrying 
``passengers'' and providing maintenance (i.e., high-rail vehicle).
Safety
    ``Safety'' means freedom from harm resulting from unintentional 
acts or circumstances.
Security
    ``Security'' means freedom from harm resulting from intentional 
acts or circumstances. Intentional danger includes crimes and must be 
reported to the oversight agency if the intentional act meets the 
thresholds for notification as specified in this rule.
State
    ``State'' means a State of the United States, the District of 
Columbia, Puerto Rico, the Northern Mariana Islands, Guam, American 
Samoa, and the Virgin Islands.
System Safety Program Plan
    ``System safety program plan'' means a document developed and 
adopted by the rail transit agency, describing its safety policies, 
objectives, responsibilities, and procedures.
System Security Plan
    ``System security plan'' means a document developed and adopted by 
the rail transit agency, describing its security policies, objectives, 
responsibilities, and procedures. The system security plan must be a 
separate document from the system safety program plan.

Withholding of Funds for Noncompliance (Sec.  659.7)

    Authority for this section is based on 49 U.S.C. 5330, which 
directs FTA to withhold federal funding from a state or an urbanized 
area in the state. FTA is authorized to withhold up to five percent of 
an affected urbanized area's apportionment if FTA determines the state 
is not in compliance or making adequate efforts to comply with the 
rule. Withheld formula funds will be restored if the state is in 
compliance within two (2) years.

Designation of Oversight Agency (Sec.  659.9)

    This section directs the state to select an agency to oversee the 
rail fixed guideway system and prohibits the state from selecting the 
rail transit agency to perform this role. It also prohibits the state 
from selecting an agency for which a conflict of interest--as 
determined by FTA--exists that would prevent the oversight agency from 
carrying out its activities in an unbiased manner.
    The rule requires that the state's designation, at a minimum, 
coincides with the execution of a grant agreement between FTA and the 
rail transit agency for a New Starts project or prior to the 
application for any formula funds.
    Designation means that the Governor for the affected state would 
identify an agency, and a point of contact from that agency who will 
assume oversight responsibility. Designation, for purposes of the final 
rule, may occur prior to the passage of enabling legislation or other 
activities that may be necessary for the oversight agency to assume its 
responsibilities for implementing part 659 requirements.
    After designation, the state would have sixty (60) days to provide 
FTA with a designation submission, which would include: (1) 
Identification of the agency most likely to provide oversight; (2) a 
description of its current authorities relating to rail transit safety 
and security oversight; (3) a point of contact within the designated 
agency to coordinate program development with FTA; (4) identification 
of any potential conflicts of interest between the designated agency 
and the rail transit agency, based on financial or shared management 
responsibilities; and (5) a proposed schedule describing major 
milestones to ensure implementation of the state's oversight program 
before the start of passenger operations at the rail transit agency.
    For rail transit agencies that operate, or will operate, in more 
than one state, the affected states may each designate an agency of the 
state to implement state safety oversight requirements, or may agree to 
designate one agency of one state, or an agency representative of each 
state. After the states designate an agency, a single program standard, 
adopted by each state, must be developed to implement state safety 
oversight program requirements. This will allow the rail transit agency 
to develop a seamless program that is equally applicable in all 
affected states, rather than being burdened with requirements from two 
or more states.
    States that have already designated an approved agency to FTA are 
not required to re-designate. However, if a state changes its 
designation, the new oversight agency must submit a new initial 
submission to FTA within thirty (30) days of the change, consistent 
with Sec.  659.39.

Confidentiality of Investigation Reports (Sec.  659.11)

    This section allows states to prohibit an investigation report 
prepared or adopted by the oversight agency from being admitted into 
evidence or used in a civil action. In addition, this part does not 
require public availability of the rail transit agency's security plan.

Oversight Agency Overview and Program Standard (Sec.  659.13-15)

    This rule removes the reference to the APTA Manual from the 
requirements for a State Safety Oversight Program standard. FTA has 
prepared a list of nine (9) elements that must be included in a program 
standard, including minimum requirements to address oversight agency 
authority and specific interfaces with the rail transit agency.
    The program standard must address both safety and security and be 
submitted to FTA with the oversight agency's initial submission. If the 
oversight agency modifies its program standard it must submit the 
revised version to FTA.

System Safety Program Plan (Sec. Sec.  659.17-19)

    The rule stipulates that the oversight agency must require the rail 
transit agency to develop and implement a written system safety program 
plan that complies with the oversight agency's program standard. FTA 
has identified twenty-one (21) elements that, at a minimum, must be 
addressed by the rail transit agency. The rail transit agency must 
submit its system safety program plan--and any subsequent revisions--to 
the oversight agency for review and approval.

System Security Plan (Sec. Sec.  659.21-23)

    The rule requires that the system security plan is developed and 
maintained separately from the rail transit agency's system safety 
program plan. FTA considers the system security plan to be sensitive 
information and has not established any requirements preventing the 
state, oversight agency, or rail transit agency from protecting the 
system security plan and any referenced procedures from public 
disclosure. The oversight agency and rail transit agency must identify 
a process by which the oversight agency can review and approve the 
system security plan without compromising sensitive information. 
Throughout this process, the transit system and the oversight agency 
must comply with all regulations relating to the non-disclosure of 
sensitive information in 49 CFR part 1520.

[[Page 22575]]

    FTA, to the best of its knowledge, has not established any 
requirements for the system security plan that are in conflict with 
Department of Homeland Security (DHS) directives. The DHS is the lead 
Federal agency on security matters, including transportation, and FTA 
collaborates closely with them.

Annual Review of System Safety Program Plan and System Security Plan 
(Sec.  659.25)

    The rule specifies that the oversight agency must require the rail 
transit agency to conduct an annual review of its system safety program 
plan and system security plan. This review may simply result in the 
determination that no update is necessary in either plan, or it may 
result in more substantive changes to one or both plans.
    In the event that the system safety program plan is modified, the 
rail transit agency must submit the modified plan and any subsequently 
modified procedures to the oversight agency for review and approval. 
When the plan is approved, the oversight agency must issue a formal 
letter of approval to the rail transit agency.
    In the event that the system security plan is modified, the rail 
transit agency is required to make it available to the oversight agency 
for review and approval. When the plan is approved, the oversight 
agency must issue a formal letter of approval to the rail transit 
agency.

Internal Safety and Security Reviews (Sec.  659.27)

    Each rail transit agency must conduct internal safety and security 
reviews as described in its procedures. The rail transit agency must 
document this process in its system safety program plan for review and 
approval by the oversight agency. The rail transit agency must notify 
the oversight agency at least thirty (30) days before conducting a 
scheduled review, in a manner acceptable to the oversight agency 
without placing undue burden on the rail transit agency.
    The internal safety and security reviews must be conducted 
throughout the year, with all elements to be reviewed completed within 
a three-year cycle. The rail transit agency must provide the oversight 
agency with all checklists and procedures used to conduct its safety 
reviews, and make available checklists and procedures for conducting 
security reviews, provided this does not compromise sensitive 
information.
    The oversight agency must require the rail transit agency to submit 
an annual report documenting internal safety and security review 
activities and the status of subsequent findings and recommendations. 
The security section of this report must be made available to the 
oversight agency in a manner that does not compromise sensitive 
information. The annual report must be accompanied by a formal letter 
of certification signed by the rail transit agency's executive director 
or general manager, indicating that the rail transit agency is in 
compliance with its system safety program plan and system security 
plan. In the event that the rail transit agency is not in compliance 
with its own system safety program plan or security plan, the rail 
transit agency must identify the actions it is taking to achieve 
compliance, including a schedule and the department that is 
responsible. The oversight agency must formally review and approve this 
report.

Oversight Agency Safety and Security Reviews (Sec.  659.29)

    At least every three (3) years, the oversight agency must conduct 
an on-site review of the rail transit agency's implementation of its 
system safety program plan and system security plan. The rule also 
requires that the oversight agency prepares and issues a report 
containing findings and recommendations resulting from that review, 
which, at a minimum, must include an analysis of the effectiveness of 
the system safety program plan and the security plan and a 
determination of whether either should be updated. Based on the results 
of this on-site review, the oversight agency must ensure that 
corrective action plans are developed to address review findings.
    The rail transit agency's system safety program plan and system 
security plan may be reviewed in an ongoing manner over the three-year 
timeframe, or in a comprehensive on-site review, once every three 
years.

Hazard Management Process (Sec.  659.31)

    The rule requires the rail transit agency to develop a process to 
identify and resolve hazards during operation, system extensions, 
modifications, or changes (including procedural changes). This process 
would replace the current requirements for the notification and 
investigation of unacceptable hazardous conditions, and ensure that the 
oversight agency has an ongoing role in the rail transit agency's 
hazard identification and resolution process.
    As part of the system safety program plan, the oversight agency 
must require the rail transit agency to develop a hazard management 
process, to be reviewed and approved by the oversight agency. This 
process must, at a minimum: (1) Define the rail transit agency's 
approach to hazard management and the implementation of an integrated 
system-wide hazard resolution process; (2) specify the sources of, and 
the mechanisms to support, the on-going identification of hazards; (3) 
define the process by which identified hazards will be evaluated and 
prioritized for elimination or control; (4) identify the mechanism used 
to track to resolution the identified hazards; (5) define minimum 
thresholds for the notification and reporting to oversight agencies of 
hazards; and (6) specify the process by which the rail transit agency 
will provide on-going reporting of hazard resolution activities to the 
oversight agency.

Accident Notification (Sec.  659.33)

    The oversight agency must require the rail transit agency to notify 
the oversight agency within two (2) hours of any incident involving a 
rail transit vehicle or taking place on rail transit-controlled 
property, where one or more of the following occurs:
    (1) A fatality at the scene; or where an individual is confirmed 
dead within thirty (30) days of a rail transit-related incident;
    (2) Injuries requiring immediate medical attention away from the 
scene for two or more individuals;
    (3) Property damage to rail transit vehicles, non-rail transit 
vehicles, other rail transit property or facilities, and non-transit 
property that equals or exceeds $25,000;
    (4) An evacuation due to life safety reasons;
    (5) A collision at a grade crossing;
    (6) A main-line derailment;
    (7) A collision with an individual on a rail right of way; or
    (8) A collision between a rail transit vehicle and another rail 
transit vehicle or a rail transit non-revenue vehicle.
    These events could take place on a rail transit vehicle or on rail 
transit-controlled property, and could involve rail transit passengers, 
employees, contractors, rail transit facility occupants, other workers, 
trespassers, or other persons.
    For rail transit agencies that share track with the general 
railroad system and are subject to FRA notification requirements, the 
rule requires notifying the oversight agency within two (2) hours of an 
incident for which the rail transit agency must notify the FRA. FTA 
believes this is necessary to address the role of the State Safety 
Oversight Program in the FRA's waiver process at 49 CFR parts 209 and 
211.
    The rule requires that the oversight agency identify in its program 
standard

[[Page 22576]]

the information to be provided by the rail transit agency with the 
method of notification.

Investigations (Sec.  659.35)

    At a minimum the oversight agency must investigate, or cause to be 
investigated, any incident involving a rail transit vehicle or taking 
place on rail transit-controlled property meeting the notification 
thresholds identified in the notification Sec.  659.33(a).
    These thresholds correspond closely to the thresholds required by 
the NTSB for rail transit agency notification of events that may be 
subsequently investigated by the NTSB, as well as the thresholds 
identified in the NTD for major incidents.
    In meeting this requirement, the oversight agency must ensure that 
the investigation is conducted according to procedures reviewed and 
approved by the oversight agency and submitted to FTA. In the event the 
oversight agency designates the rail transit agency to conduct the 
investigation on its behalf, it must do so formally and require the 
rail transit agency to use investigation procedures that have been 
formally approved by the oversight agency and submitted to FTA to 
fulfill the oversight agency's initial or annual submission 
requirements.
    The rule specifies that each investigation must be documented in a 
final report that includes a description of investigation activities, 
causal factors and contributing factors, and a corrective action plan. 
The rule provides the oversight agency with the flexibility to 
determine, in its program standard, when the final investigation report 
must be submitted to the oversight agency, the format of the final 
report, and whether status updates or preliminary findings should also 
be submitted according to a timeframe specified by the oversight 
agency.
    The oversight agency is ultimately responsible for the 
investigation and the final report. The oversight agency may adopt the 
final report, findings, and corrective actions submitted by the rail 
transit agency or conduct its own investigation to determine findings. 
If a dispute relating to investigation findings should arise between 
the oversight agency and the rail transit agency, the oversight agency 
is responsible for resolving the dispute to ensure that corrective 
actions are developed to address report findings and requiring periodic 
status reports that document investigation activities and findings.

Corrective Action Plans (Sec.  659.37)

    The rule consolidates all requirements for corrective action plans 
into a single section. The rule specifies that the oversight agency, at 
a minimum, require the rail transit agency to develop a corrective 
action plan for the following occurrences: (1) results from 
investigations in which identified causal and contributing factors are 
determined by the rail transit agency or oversight agency as requiring 
corrective actions; and (2) findings from safety and security reviews 
performed by the oversight agency. Requirements for corrective action 
plan development for identified hazards are to be specified by the rail 
transit agency in the hazard management process.
    The rule specifies that each corrective action plan must identify 
the action to be taken by the rail transit agency, the schedule for its 
implementation, and the department responsible for its implementation. 
The corrective action plan must be reviewed and formally approved by 
the oversight agency. The oversight agency is required to monitor the 
implementation of each approved corrective action plan.
    The rule specifies that the oversight agency must require the rail 
transit agency to provide (1) verification that the corrective 
action(s) has been implemented as detailed in the corrective action 
plan or a proposed alternate action(s) subject to oversight agency 
review and approval and (2) periodic reports as requested by the 
oversight agency describing the status of each corrective action(s) not 
completely implemented as described in the corrective action plan.

Oversight Agency Report to the Federal Transit Administration (Sec.  
659.39)

    The rule requires that all submissions to FTA be made 
electronically. At the current time, FTA anticipates that this 
reporting would occur in an Internet-based format, as a secure page on 
FTA's existing safety and security Web site. Until the system is in 
place, FTA requires that annual submissions be made through electronic 
mail or on CD-ROM through regular mail. Oversight agencies will be 
notified when the Internet-based system is operational.
    For initial submissions, the rule specifies that each designated 
oversight agency must submit to FTA: (1) oversight agency program 
standard and referenced procedures; and (2) certification that the 
system safety program plan and the system security plan have been 
developed, reviewed, and approved. In states with rail fixed guideway 
systems in passenger operations, as of the publication date of this 
rule, the designated oversight agency must make its initial submissions 
to FTA no later than one year after the publication of the final rule. 
In states with rail fixed guideway systems entering passenger 
operations after the publication date of this rule, the designated 
oversight agency must make its initial submission within the time frame 
proposed by the state in its designation submission and approved by 
FTA.
    This rule requires that oversight agencies make annual submissions 
prior to March 15 of each year using a reporting system specified by 
FTA. The annual submission would require the following: (1) Publicly 
available annual report summarizing its oversight activities for the 
preceding twelve months; (2) report documenting and tracking findings 
from three-year safety and security review activities, and whether a 
three-year safety or security review has been completed since the last 
annual report was submitted; and (3) program standard and supporting 
procedures that have changed during the preceding year.
    Finally, FTA has the authority to request periodic submissions from 
oversight agencies, which may include status reports for accident 
investigations, hazards, and corrective action plans.

Conflict of Interest (Sec.  659.41)

    This rule requires the oversight agency to prohibit a person or 
entity from providing services to both the state safety oversight 
agency and rail transit agency when a conflict of interest exists.

Certification of Compliance (Sec.  659.43)

    This rule requires that each oversight agency annually certify 
electronically to FTA that it has complied with the requirements of the 
State Safety Oversight Program. The oversight agency must maintain a 
signed copy of each annual certification, subject to audit by FTA.

VII. Distribution and Derivation Tables

                           Distribution Table
------------------------------------------------------------------------
                Old section                        New section(s)
------------------------------------------------------------------------
659.1.....................................  659.1
659.3.....................................  659.3
659.5.....................................  659.5
659.7.....................................  659.7
659.21....................................  659.9
659.23....................................  659.11
659.31....................................  659.13 and 659.15
659.33....................................  659.17, 659.19, and 659.21
659.23....................................  N.A.
N.A.......................................  659.25
659.35....................................  659.27
659.37....................................  659.29
659.39....................................  659.31 and 659.33
659.41....................................  659.35

[[Page 22577]]

 
659.43....................................  659.37
659.45....................................  659.39
N.A.......................................  659.41
659.47....................................  None
659.49....................................  659.43
------------------------------------------------------------------------


                            Derivation Table
------------------------------------------------------------------------
                New section                        Old section(s)
------------------------------------------------------------------------
659.1.....................................  659.1
659.3.....................................  659.3
659.5.....................................  659.5
659.7.....................................  659.7
659.9.....................................  659.21
659.11....................................  659.23
659.13....................................  659.31
659.15....................................  659.31
659.17....................................  659.33
659.19....................................  New
659.21....................................  659.33
659.23....................................  New
659.25....................................  New
659.27....................................  659.37
659.29....................................  659.39
659.31....................................  New
659.33....................................  659.39
659.35....................................  659.41
659.37....................................  659.43
659.39....................................  659.45
659.41....................................  New
659.43....................................  659.49
------------------------------------------------------------------------

VIII. Regulatory Process Matters

Executive Order 12866

    The Office of Management and Budget (OMB) has determined that OMB 
review under EO 12866 is not necessary. While the economic impact of 
this rulemaking is not anticipated to be significant because the 
changes are incremental in nature, FTA recognizes that this rule 
affects state governments, may be of congressional interest and makes 
changes to important DOT policy. These changes include replacing a 
referenced industry manual as the guideline for program compliance with 
proposed minimum requirements, revised thresholds for accident 
notification and investigation, clarification of critical processes 
such as the management of hazardous conditions, and additional 
definitions. For these reasons, this rule is a significant regulation 
under the Department's Regulatory Policies and Procedures.
    In 1995, FTA evaluated the industry-wide costs and benefits of part 
659 before this revision. The economic analysis is available from FTA. 
In its analysis, FTA estimated the total costs for the first ten years 
to be approximately $9.1 million. However, when factoring in 
projections for program growth and new starts, the estimated annual 
burden between years five (5) and ten (10) increased approximately 15 
percent. FTA estimates the annual cost of this rule (i.e., the annual 
cost of the entire rule as amended, as distinct from incremental costs 
of the proposed changes) to be approximately $2.1 million--this 
represents a nearly $800,000 increase over the previous rule. The 
$800,000 difference between the previous cost of implementing the rule 
and the annual cost of implementing this revised rule over the next 10 
years is mostly caused by continued program growth (i.e., addition of 
seven (7) rail transit agencies and new states by the year 2013). When 
estimating costs for this rule, FTA increased the assumed hourly rate 
for personnel responsible for implementing rule requirements from $25 
per hour to $35 per hour. This increase reflects FTA experience with 
the implementation of the previous rule's requirements and outreach 
with state and rail transit agency representatives. FTA believes that 
while the estimate for the annual cost burden has increased, the 
proposed changes will not cause the regulated parties to drastically 
change their behavior or substantially increase the number of resources 
needed to meet rule requirements.

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act of 1995

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

Executive Order 13132 (Federalism Assessment)

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

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, 
et. seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. This rule includes 
information collection requirements subject to PRA. OMB approved FTA's 
collection requirements in the original rule, and reviewed and approved 
an updated submission in November 2002 (OMB 2132-0558). Since 
this rule will result in additional or altered paperwork collection 
burdens, FTA will submit this requirement to the Office of Information 
and Regulatory Affairs of the OMB for review.
    The estimated burden for information collection requirements is an 
annualized 26,502 hours and $927,600 for oversight agencies and 33,244 
hours and $1,163,540 for rail transit agencies. These numbers relate to 
the burdens of the entire rule as amended, distinct from incremental 
burdens of the changes.

National Environmental Policy Act

    FTA has analyzed this action for the purpose of compliance with the

[[Page 22578]]

National Environmental Policy Act (42 U.S.C. 4321 et seq.) and has 
determined that this rulemaking will not have any effect on the quality 
of the human environment.

List of Subjects in 49 CFR Part 659

    Grant Programs--Transportation, Mass Transportation, Reporting and 
recordkeeping requirements, Safety, Security, Transportation.

0
For the reasons described in the preamble, FTA revises part 659 to read 
as follows:

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

Subpart A--General Provisions
Sec.
659.1 Purpose.
659.3 Scope.
659.5 Definitions.
Subpart B--Role of the State
659.7 Withholding of funds for noncompliance.
659.9 Designation of oversight agency.
659.11 Confidentiality of investigation reports and security plans.
Subpart C--Role of the State Oversight Agency
659.13 Overview.
659.15 System safety program standard.
659.17 System safety program plan: general requirements.
659.19 System safety program plan: contents
659.21 System security plan: general requirements.
659.23 System security plan: contents.
659.25 Annual review of system safety program plan and system 
security plan.
659.27 Internal safety and security reviews.
659.29 Oversight agency safety and security reviews.
659.31 Hazard management process.
659.33 Accident notification.
659.35 Investigations.
659.37 Corrective action plans.
659.39 Oversight agency reporting to the Federal Transit 
Administration.
659.41 Conflict of interest.
659.43 Certification of compliance.

    Authority: 49 U.S.C. 5330.

Subpart A--General Provisions


Sec.  659.1  Purpose.

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


Sec.  659.3  Scope.

    This part applies only to states with rail fixed guideway systems, 
as defined in this part.


Sec.  659.5  Definitions.

    Contractor means an entity that performs tasks required on behalf 
of the oversight or rail transit agency. The rail transit agency may 
not be a contractor for the oversight agency.
    Corrective action plan means a plan developed by the rail transit 
agency that describes the actions the rail transit agency will take to 
minimize, control, correct, or eliminate hazards, and the schedule for 
implementing those actions.
    FRA means the Federal Railroad Administration, an agency within the 
U.S. Department of Transportation.
    FTA means the Federal Transit Administration, an agency within the 
U.S. Department of Transportation.
    Hazard means any real or potential condition (as defined in the 
rail transit agency's hazard management process) that can cause injury, 
illness, or death; damage to or loss of a system, equipment or 
property; or damage to the environment.
    Individual means a passenger; employee; contractor; other rail 
transit facility worker; pedestrian; trespasser; or any person on rail 
transit-controlled property.
    Investigation means the process used to determine the causal and 
contributing factors of an accident or hazard, so that actions can be 
identified to prevent recurrence.
    New Starts Project means any rail fixed guideway system funded 
under FTA's 49 U.S.C. 5309 discretionary construction program.
    Oversight Agency means the entity, other than the rail transit 
agency, designated by the state or several states to implement this 
part.
    Passenger means a person who is on board, boarding, or alighting 
from a rail transit vehicle for the purpose of travel.
    Passenger Operations means the period of time when any aspect of 
rail transit agency operations are initiated with the intent to carry 
passengers.
    Program Standard means a written document developed and adopted by 
the oversight agency, that describes the policies, objectives, 
responsibilities, and procedures used to provide rail transit agency 
safety and security oversight.
    Rail Fixed Guideway System means any light, heavy, or rapid rail 
system, monorail, inclined plane, funicular, trolley, or automated 
guideway that:
    (1) Is not regulated by the Federal Railroad Administration; and
    (2) Is included in FTA's calculation of fixed guideway route miles 
or receives funding under FTA's formula program for urbanized areas (49 
U.S.C. 5336); or
    (3) Has submitted documentation to FTA indicating its intent to be 
included in FTA's calculation of fixed guideway route miles to receive 
funding under FTA's formula program for urbanized areas (49 U.S.C. 
5336).
    Rail Transit Agency means an entity that operates a rail fixed 
guideway system.
    Rail Transit-Controlled Property means property that is used by the 
rail transit agency and may be owned, leased, or maintained by the rail 
transit agency.
    Rail Transit Vehicle means the rail transit agency's rolling stock, 
including but not limited to passenger and maintenance vehicles.
    Safety means freedom from harm resulting from unintentional acts or 
circumstances.
    Security means freedom from harm resulting from intentional acts or 
circumstances.
    State means a State of the United States, the District of Columbia, 
Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and 
the Virgin Islands.
    System Safety Program Plan means a document developed and adopted 
by the rail transit agency, describing its safety policies, objectives, 
responsibilities, and procedures.
    System Security Plan means a document developed and adopted by the 
rail transit agency describing its security policies, objectives, 
responsibilities, and procedures.

Subpart B--Role of the State


Sec.  659.7  Withholding of funds for noncompliance.

    (a) The Administrator of the FTA may withhold up to five percent of 
the amount required to be distributed to any state or affected 
urbanized area in such state under FTA's formula program for urbanized 
areas, if:
    (1) The state in the previous fiscal year has not met the 
requirements of this part; and
    (2) The Administrator determines that the state is not making 
adequate efforts to comply with this part.
    (b) The Administrator may agree to restore withheld formula funds, 
if compliance is achieved within two years (See 49 U.S.C. 5330).


Sec.  659.9  Designation of oversight agency.

    (a) General requirement. Each state with an existing or anticipated 
rail fixed guideway system regulated by this part shall designate an 
oversight agency consistent with the provisions of this section. For a 
rail fixed guideway system that will operate in only one state, the 
state must designate an agency of the state, other than the rail 
transit

[[Page 22579]]

agency, as the oversight agency to implement the requirements in this 
part. The state's designation or re-designation of its oversight agency 
and submission of required information as specified in this section, 
are subject to review by FTA.
    (b) Exception. States which have designated oversight agencies for 
purposes of this part before May 31, 2005 are not required to re-
designate to FTA.
    (c) Timing. The state designation of the oversight agency shall:
    (1) Coincide with the execution of any grant agreement for a New 
Starts project between FTA and a rail transit agency within the state's 
jurisdiction; or
    (2) Occur before the application by a rail transit agency for 
funding under FTA's formula program for urbanized areas (49 U.S.C. 
5336).
    (d) Notification to FTA. Within (60) days of designation of the 
oversight agency, the state must submit to FTA the following:
    (1) The name of the oversight agency designated to implement 
requirements in this part;
    (2) Documentation of the oversight agency's authority to provide 
state oversight;
    (3) Contact information for the representative identified by the 
designated oversight agency with responsibility for oversight 
activities;
    (4) A description of the organizational and financial relationship 
between the designated oversight agency and the rail transit agency; 
and
    (5) A schedule for the designated agency's development of its State 
Safety Oversight Program, including the projected date of its initial 
submission, as required in Sec.  659.39(a).
    (e) Multiple states. In cases of a rail fixed guideway system that 
will operate in more than one state, each affected state must designate 
an agency of the state, other than the rail transit agency, as the 
oversight agency to implement the requirements in this part. To fulfill 
this requirement, the affected states:
    (1) May agree to designate one agency of one state, or an agency 
representative of all states, to implement the requirements in this 
part; and
    (2) In the event multiple states share oversight responsibility for 
a rail fixed guideway system, the states must ensure that the rail 
fixed guideway system is subject to a single program standard, adopted 
by all affected states.
    (f) Change of designation. Should a state change its designated 
oversight agency, it shall submit the information required under 
paragraph (d) of this section to FTA within (30) days of its change. In 
addition, the new oversight agency must submit a new initial 
submission, consistent with Sec.  659.39(b), within (30) days of its 
designation.


Sec.  659.11  Confidentiality of investigation reports and security 
plans.

    (a) A state may withhold an investigation report that may have been 
prepared or adopted by the oversight agency from being admitted as 
evidence or used in a civil action for damages resulting from a matter 
mentioned in the report.
    (b) This part does not require public availability of the rail 
transit agency's security plan and any referenced procedures.

Subpart C--Role of the State Oversight Agency


Sec.  659.13  Overview.

    The state oversight agency is responsible for establishing 
standards for rail safety and security practices and procedures to be 
used by rail transit agencies within its purview. In addition, the 
state oversight agency must oversee the execution of these practices 
and procedures, to ensure compliance with the provisions of this part. 
This subpart identifies and describes the various requirements for the 
state oversight agency.


Sec.  659.15  System safety program standard.

    (a) General requirement. Each state oversight agency shall develop 
and distribute a program standard. The program standard is a 
compilation of processes and procedures that governs the conduct of the 
oversight program at the state oversight agency level, and provides 
guidance to the regulated rail transit properties concerning processes 
and procedures they must have in place to be in compliance with the 
state safety oversight program. The program standard and any referenced 
program procedures must be submitted to FTA as part of the initial 
submission. Subsequent revisions and updates must be submitted to FTA 
as part of the oversight agency's annual submission.
    (b) Contents. Each oversight agency shall develop a written program 
standard that meets the requirements specified in this part and 
includes, at a minimum, the areas identified in this section.
    (1) Program management section. This section shall include an 
explanation of the oversight agency's authority, policies, and roles 
and responsibilities for providing safety and security oversight of the 
rail transit agencies within its jurisdiction. This section shall 
provide an overview of planned activities to ensure on-going 
communication with each affected rail transit agency relating to safety 
and security information, as well as FTA reporting requirements, 
including initial, annual and periodic submissions.
    (2) Program standard development section. This section shall 
include a description of the oversight agency's process for the 
development, review, and adoption of the program standard, the 
modification and/or update of the program standard, and the process by 
which the program standard and any subsequent revisions are distributed 
to each affected rail transit agency.
    (3) Oversight of rail transit agency internal safety and security 
reviews. This section shall specify the role of the oversight agency in 
overseeing the rail transit agency internal safety and security review 
process. This includes a description of the process used by the 
oversight agency to receive rail transit agency checklists and 
procedures and approve the rail transit agency's annual reports on 
findings, which must be submitted under the signature of the rail 
transit agency's top management.
    (4) Oversight agency safety and security review section. This 
section shall lay out the process and criteria to be used at least 
every three years in conducting a complete review of each affected rail 
transit agency's implementation of its system safety program plan and 
system security plan. This section includes the process to be used by 
the affected rail transit agency and the oversight agency to manage 
findings and recommendations from this review. This also includes 
procedures for notifying the oversight agency before the rail transit 
agency conducts an internal review.
    (5) Accident notification section. This section shall include the 
specific requirements for the rail transit agency to notify the 
oversight agency of accidents. This section shall also include required 
timeframes, methods of notification, and the information to be 
submitted by the rail transit agency. Additional detail on this portion 
is included in Sec.  659.33 of this part.
    (6) Investigations section. This section contains the oversight 
agency identification of the thresholds for incidents that require an 
oversight agency investigation. The roles and responsibilities for 
conducting investigations shall include: coordination with the rail 
transit agency investigation process, the role of the oversight agency 
in supporting investigations and findings conducted by the NTSB, review 
and concurrence of investigation report findings, and procedures for 
protecting the confidentiality of investigation reports.

[[Page 22580]]

    (7) Corrective actions section. This section shall specify 
oversight agency criteria for the development of corrective action 
plan(s) and the process for the review and approval of a corrective 
action plan developed by the rail transit agency. This section shall 
also identify the oversight agency's policies for the verification and 
tracking of corrective action plan implementation, and its process for 
managing conflicts with the rail transit agency relating to 
investigation findings and corrective action plan development.
    (8) System safety program plan section. This section shall specify 
the minimum requirements to be contained in the rail transit agency's 
system safety program plan. The contents of the system safety plan are 
discussed in more detail in Sec.  659.19 of this part. This section 
shall also specify information to be included in the affected rail 
transit agency's system safety program plan relating to the hazard 
management process, including requirements for on-going communication 
and coordination relating to the identification, categorization, 
resolution, and reporting of hazards to the oversight agency. More 
details on the hazard management process are contained in Sec.  659.31 
of this part. This section shall also describe the process and 
timeframe through which the oversight agency must receive, review, and 
approve the rail transit agency system safety program plan.
    (9) System security plan section. This section shall specify the 
minimum requirements to be included in the rail transit agency's system 
security plan. More details about the system security plan are 
contained in Sec. Sec.  659.21 through 659.23 of this part. This 
section shall also describe the process by which the oversight agency 
will review and approve the rail transit agency system security program 
plan. This section also shall identify how the state will prevent the 
system security plan from public disclosure.


Sec.  659.17  System safety program plan: general requirements.

    (a) The oversight agency shall require the rail transit agency to 
develop and implement a written system safety program plan that 
complies with requirements in this part and the oversight agency's 
program standard.
    (b) The oversight agency shall review and approve the rail transit 
agency system safety program plan.
    (c) After approval, the oversight agency shall issue a formal 
letter of approval to the rail transit agency, including the checklist 
used to conduct the review.


Sec.  659.19  System safety program plan: contents.

    The system safety plan shall include, at a minimum:
    (a) A policy statement signed by the agency's chief executive that 
endorses the safety program and describes the authority that 
establishes the system safety program plan.
    (b) A clear definition of the goals and objectives for the safety 
program and stated management responsibilities to ensure they are 
achieved.
    (c) An overview of the management structure of the rail transit 
agency, including:
    (1) An organization chart;
    (2) A description of how the safety function is integrated into the 
rest of the rail transit organization; and
    (3) Clear identification of the lines of authority used by the rail 
transit agency to manage safety issues.
    (d) The process used to control changes to the system safety 
program plan, including:
    (1) Specifying an annual assessment of whether the system safety 
program plan should be updated; and
    (2) Required coordination with the oversight agency, including 
timeframes for submission, revision, and approval.
    (e) A description of the specific activities required to implement 
the system safety program, including:
    (1) Tasks to be performed by the rail transit safety function, by 
position and management accountability, specified in matrices and/or 
narrative format; and
    (2) Safety-related tasks to be performed by other rail transit 
departments, by position and management accountability, specified in 
matrices and/or narrative format.
    (f) A description of the process used by the rail transit agency to 
implement its hazard management program, including activities for:
    (1) Hazard identification;
    (2) Hazard investigation, evaluation and analysis;
    (3) Hazard control and elimination;
    (4) Hazard tracking; and
    (5) Requirements for on-going reporting to the oversight agency 
relating to hazard management activities and status.
    (g) A description of the process used by the rail transit agency to 
ensure that safety concerns are addressed in modifications to existing 
systems, vehicles, and equipment, which do not require formal safety 
certification but which may have safety impacts.
    (h) A description of the safety certification process required by 
the rail transit agency to ensure that safety concerns and hazards are 
adequately addressed prior to the initiation of passenger operations 
for New Starts and subsequent major projects to extend, rehabilitate, 
or modify an existing system, or to replace vehicles and equipment.
    (i) A description of the process used to collect, maintain, 
analyze, and distribute safety data, to ensure that the safety function 
within the rail transit organization receives the necessary information 
to support implementation of the system safety program.
    (j) A description of the process used by the rail transit agency to 
perform accident notification, investigation and reporting, including:
    (1) Notification thresholds for internal and external 
organizations;
    (2) Accident investigation process and references to procedures;
    (3) The process used to develop, implement, and track corrective 
actions that address investigation findings;
    (4) Reporting to internal and external organizations; and
    (5) Coordination with the oversight agency.
    (k) A description of the process used by the rail transit agency to 
develop an approved, coordinated schedule for all emergency management 
program activities, which include:
    (1) Meetings with external agencies;
    (2) Emergency planning responsibilities and requirements;
    (3) Process used to evaluate emergency preparedness, such as annual 
emergency field exercises;
    (4) After action reports and implementation of findings;
    (5) Revision and distribution of emergency response procedures;
    (6) Familiarization training for public safety organizations; and
    (7) Employee training.
    (l) A description of the process used by the rail transit agency to 
ensure that planned and scheduled internal safety reviews are performed 
to evaluate compliance with the system safety program plan, including:
    (1) Identification of departments and functions subject to review;
    (2) Responsibility for scheduling reviews;
    (3) Process for conducting reviews, including the development of 
checklists and procedures and the issuing of findings;
    (4) Review of reporting requirements;
    (5) Tracking the status of implemented recommendations; and
    (6) Coordination with the oversight agency.
    (m) A description of the process used by the rail transit agency to 
develop, maintain, and ensure compliance with rules and procedures 
having a safety impact, including:

[[Page 22581]]

    (1) Identification of operating and maintenance rules and 
procedures subject to review;
    (2) Techniques used to assess the implementation of operating and 
maintenance rules and procedures by employees, such as performance 
testing;
    (3) Techniques used to assess the effectiveness of supervision 
relating to the implementation of operating and maintenance rules; and
    (4) Process for documenting results and incorporating them into the 
hazard management program.
    (n) A description of the process used for facilities and equipment 
safety inspections, including:
    (1) Identification of the facilities and equipment subject to 
regular safety-related inspection and testing;
    (2) Techniques used to conduct inspections and testing;
    (3) Inspection schedules and procedures; and
    (4) Description of how results are entered into the hazard 
management process.
    (o) A description of the maintenance audits and inspections 
program, including identification of the affected facilities and 
equipment, maintenance cycles, documentation required, and the process 
for integrating identified problems into the hazard management process.
    (p) A description of the training and certification program for 
employees and contractors, including:
    (1) Categories of safety-related work requiring training and 
certification;
    (2) A description of the training and certification program for 
employees and contractors in safety-related positions;
    (3) Process used to maintain and access employee and contractor 
training records; and
    (4) Process used to assess compliance with training and 
certification requirements.
    (q) A description of the configuration management control process, 
including:
    (1) The authority to make configuration changes;
    (2) Process for making changes; and
    (3) Assurances necessary for formally notifying all involved 
departments.
    (r) A description of the safety program for employees and 
contractors that incorporates the applicable local, state, and federal 
requirements, including:
    (1) Safety requirements that employees and contractors must follow 
when working on, or in close proximity to, rail transit agency 
property; and
    (2) Processes for ensuring the employees and contractors know and 
follow the requirements.
    (s) A description of the hazardous materials program, including the 
process used to ensure knowledge of and compliance with program 
requirements.
    (t) A description of the drug and alcohol program and the process 
used to ensure knowledge of and compliance with program requirements.
    (u) A description of the measures, controls, and assurances in 
place to ensure that safety principles, requirements and 
representatives are included in the rail transit agency's procurement 
process.


Sec.  659.21  System security plan: general requirements.

    (a) The oversight agency shall require the rail transit agency to 
implement a system security plan that, at a minimum, complies with 
requirements in this part and the oversight agency's program standard. 
The system security plan must be developed and maintained as a separate 
document and may not be part of the rail transit agency's system safety 
program plan.
    (b) The oversight agency may prohibit a rail transit agency from 
publicly disclosing the system security plan.
    (c) After approving the system security plan, the oversight agency 
shall issue a formal letter of approval, including the checklist used 
to conduct the review, to the rail transit agency.


Sec.  659.23  System security plan: contents.

    The system security plan must, at a minimum address the following:
    (a) Identify the policies, goals, and objectives for the security 
program endorsed by the agency's chief executive.
    (b) Document the rail transit agency's process for managing threats 
and vulnerabilities during operations, and for major projects, 
extensions, new vehicles and equipment, including integration with the 
safety certification process;
    (c) Identify controls in place that address the personal security 
of passengers and employees;
    (d) Document the rail transit agency's process for conducting 
internal security reviews to evaluate compliance and measure the 
effectiveness of the system security plan; and
    (e) Document the rail transit agency's process for making its 
system security plan and accompanying procedures available to the 
oversight agency for review and approval.


Sec.  659.25  Annual review of system safety program plan and system 
security plan.

    (a) The oversight agency shall require the rail transit agency to 
conduct an annual review of its system safety program plan and system 
security plan.
    (b) In the event the rail transit agency's system safety program 
plan is modified, the rail transit agency must submit the modified plan 
and any subsequently modified procedures to the oversight agency for 
review and approval. After the plan is approved, the oversight agency 
must issue a formal letter of approval to the rail transit agency.
    (c) In the event the rail transit agency's system security plan is 
modified, the rail transit agency must make the modified system 
security plan and accompanying procedures available to the oversight 
agency for review, consistent with requirements specified in Sec.  
659.23(e) of this part. After the plan is approved, the oversight 
agency shall issue a formal letter of approval to the rail transit 
agency.


Sec.  659.27  Internal safety and security reviews.

    (a) The oversight agency shall require the rail transit agency to 
develop and document a process for the performance of on-going internal 
safety and security reviews in its system safety program plan.
    (b) The internal safety and security review process must, at a 
minimum:
    (1) Describe the process used by the rail transit agency to 
determine if all identified elements of its system safety program plan 
and system security plan are performing as intended; and
    (2) Ensure that all elements of the system safety program plan and 
system security plan are reviewed in an on-going manner and completed 
over a three-year cycle.
    (c) The rail transit agency must notify the oversight agency at 
least thirty (30) days before the conduct of scheduled internal safety 
and security reviews.
    (d) The rail transit agency shall submit to the oversight agency 
any checklists or procedures it will use during the safety portion of 
its review.
    (e) The rail transit agency shall make available to the oversight 
agency any checklists or procedures subject to the security portion of 
its review, consistent with Sec.  659.23(e).
    (f) The oversight agency shall require the rail transit agency to 
annually submit a report documenting internal safety and security 
review activities and the status of subsequent findings and corrective 
actions. The security part of this report must be made available for 
oversight agency review, consistent with Sec.  659.23(e).
    (g) The annual report must be accompanied by a formal letter of 
certification signed by the rail transit agency's chief executive, 
indicating that the rail transit agency is in compliance

[[Page 22582]]

with its system safety program plan and system security plan.
    (h) If the rail transit agency determines that findings from its 
internal safety and security reviews indicate that the rail transit 
agency is not in compliance with its system safety program plan or 
system security plan, the chief executive must identify the activities 
the rail transit agency will take to achieve compliance.
    (i) The oversight agency must formally review and approve the 
annual report.


Sec.  659.29  Oversight agency safety and security reviews.

    At least every three (3) years, beginning with the initiation of 
rail transit agency passenger operations, the oversight agency must 
conduct an on-site review of the rail transit agency's implementation 
of its system safety program plan and system security plan. 
Alternatively, the on-site review may be conducted in an on-going 
manner over the three year timeframe. At the conclusion of the review 
cycle, the oversight agency must prepare and issue a report containing 
findings and recommendations resulting from that review, which, at a 
minimum, must include an analysis of the effectiveness of the system 
safety program plan and the security plan and a determination of 
whether either should be updated.


Sec.  659.31  Hazard management process.

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


Sec.  659.33  Accident notification.

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


Sec.  659.35  Investigations.

    (a) The oversight agency must investigate, or cause to be 
investigated, at a minimum, any incident involving a rail transit 
vehicle or taking place on rail transit-controlled property meeting the 
notification thresholds identified in Sec.  659.33(a).
    (b) The oversight agency must use its own investigation procedures 
or those that have been formally adopted from the rail transit agency 
and that have been submitted to FTA.
    (c) In the event the oversight agency authorizes the rail transit 
agency to conduct investigations on its behalf, it must do so formally 
and require the rail transit agency to use investigation procedures 
that have been formally approved by the oversight agency.
    (d) Each investigation must be documented in a final report that 
includes a description of investigation activities, identified causal 
and contributing factors, and a corrective action plan.
    (e) A final investigation report must be formally adopted by the 
oversight agency for each accident investigation.
    (1) If the oversight agency has conducted the investigation, it 
must formally transmit its final investigation report to the rail 
transit agency.
    (2) If the oversight agency has authorized an entity other than 
itself (including the rail transit agency) to conduct the accident 
investigation on its behalf, the oversight agency must review and 
formally adopt the final investigation report.
    (3) If the oversight agency does not concur with the findings of 
the rail transit agency investigation report, it must either:
    (i) Conduct its own investigation according to paragraphs (b), (d) 
and (e)(1) of this section; or
    (ii) Formally transmit its dissent to the findings of the accident 
investigation, report its dissent to the rail transit agency, and 
negotiate with the rail transit agency until a resolution on the 
findings is reached.
    (f) The oversight agency shall have the authority to require 
periodic status reports that document investigation activities and 
findings in a time frame determined by the oversight agency.


Sec.  659.37  Corrective action plans.

    (a) The oversight agency must, at a minimum, require the 
development of a corrective action plan for the following:
    (1) Results from investigations, in which identified causal and 
contributing factors are determined by the rail transit agency or 
oversight agency as requiring corrective actions; and
    (2) Findings from safety and security reviews performed by the 
oversight agency.
    (b) Each corrective action plan should identify the action to be 
taken by the rail transit agency, an implementation schedule, and the 
individual or department responsible for the implementation.
    (c) The corrective action plan must be reviewed and formally 
approved by the oversight agency.
    (d) The oversight agency must establish a process to resolve 
disputes between itself and the rail transit agency resulting from the 
development or enforcement of a corrective action plan.
    (e) The oversight agency must identify the process by which 
findings from an NTSB accident investigation will be evaluated to 
determine whether or not a corrective action plan should be developed 
by either the oversight agency or rail transit agency to address NTSB 
findings.
    (f) The rail transit agency must provide the oversight agency:

[[Page 22583]]

    (1) Verification that the corrective action(s) has been implemented 
as described in the corrective action plan, or that a proposed 
alternate action(s) has been implemented subject to oversight agency 
review and approval; and
    (2) Periodic reports requested by the oversight agency, describing 
the status of each corrective action(s) not completely implemented, as 
described in the corrective action plan.
    (g) The oversight agency must monitor and track the implementation 
of each approved corrective action plan.


Sec.  659.39  Oversight agency reporting to the Federal Transit 
Administration.

    (a) Initial submission. Each designated oversight agency with a 
rail fixed guideway system that is in passenger operations as of April 
29, 2005 or will begin passenger operations by May 1, 2006, must make 
its initial submission to FTA by May 1, 2006. In states with rail fixed 
guideway systems initiating passenger operations after May 1, 2006, the 
designated oversight agency must make its initial submission within the 
time frame specified by the state in its designation submission, but 
not later than at least sixty (60) days prior to initiation of 
passenger operations. Any time a state changes its designated oversight 
agency to carry out the requirements identified in this part, the new 
oversight agency must make a new initial submission to FTA within 
thirty (30) days of the designation.
    (b) An initial submission must include the following:
    (1) Oversight agency program standard and referenced procedures; 
and
    (2) Certification that the system safety program plan and the 
system security plan have been developed, reviewed, and approved.
    (c) Annual submission. Before March 15 of each year, the oversight 
agency must submit the following to FTA:
    (1) A publicly available annual report summarizing its oversight 
activities for the preceding twelve months, including a description of 
the causal factors of investigated accidents, status of corrective 
actions, updates and modifications to rail transit agency program 
documentation, and the level of effort used by the oversight agency to 
carry out its oversight activities.
    (2) A report documenting and tracking findings from three-year 
safety review activities, and whether a three-year safety review has 
been completed since the last annual report was submitted.
    (3) Program standard and supporting procedures that have changed 
during the preceding year.
    (4) Certification that any changes or modifications to the rail 
transit agency system safety program plan or system security plan have 
been reviewed and approved by the oversight agency.
    (d) Periodic submission. FTA retains the authority to periodically 
request program information.
    (e) Electronic reporting. All submissions to FTA required in this 
part must be submitted electronically using a reporting system 
specified by FTA.


Sec.  659.41  Conflict of interest.

    The oversight agency shall prohibit a party or entity from 
providing services to both the oversight agency and rail transit agency 
when there is a conflict of interest, as defined by the state.


Sec.  659.43  Certification of compliance.

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

    Issued on: April 4, 2005.
Jennifer L. Dorn,
Administrator.
[FR Doc. 05-8567 Filed 4-28-05; 8:45 am]
BILLING CODE 4910-57-P