Rail Fixed Guideway Systems; State Safety Oversight

SUMMARY: As required by the Intermodal Surface Transportation

Efficiency Act of 1991, the Federal Transit Administration (FTA) issues

a rule requiring States to oversee the safety of rail fixed guideway

systems not regulated by the Federal Railroad Administration (FRA).

This document accordingly sets forth FTA's State safety oversight

program, which is intended to improve the safety of rail fixed guideway

systems.

EFFECTIVE DATE: This regulation is effective January 26, 1996. The

incorporation by reference of certain documents in the regulation is

approved by the Director of the Federal Register as of January 26,

1996.

FOR FURTHER INFORMATION CONTACT: For program issues: Judy Meade or Roy

Field, Office of Safety and Security, Federal Transit Administration,

(202) 366-2896 (telephone) or (202) 366-3765 (fax). For legal issues:

Nancy Zaczek, Office of Chief Counsel, Federal Transit Administration,

(202) 366-4011 or (202) 366-3809.

SUPPLEMENTARY INFORMATION:

This preamble is organized as follows:

I. Background

A. 49 U.S.C. Sec. 5330

B. Summary of the final rule

C. Overview of the comments

II. Discussion of the Comments

A. Rail Fixed Guideway System

B. System Safety Program Standard

C. System Safety Program Plan--the six factors

D. Planning, design, and construction

E. Accountability factor

F. EPA and OSHA requirements

G. Security

H. Biennial safety reviews

I. Safety audits

J. Accident

K. Hazardous condition

L. Investigations

M. Confidentiality of oversight agency investigation reports

N. Certified Transit Safety Professional

III. Section-by-Section Analysis

IV. Economic Analysis

V. Regulatory Process Matters

I. Background

The Intermodal Surface Transportation Efficiency Act of 1991 (Pub.

L. 102-240), enacted into law on December 18, 1991, added section 28 to

the Federal Transit Act (recently codified at 49 U.S.C. 5330 (1994)),

which requires the Federal Transit Administration to issue regulations

creating a State oversight program. On June 25, 1992, FTA issued an

Advance Notice of Proposed Rulemaking (ANPRM) soliciting public comment

on a range of issues to be addressed in drafting a Notice of Proposed

Rulemaking (NPRM). 57 FR 28572. The agency held hearings on the ANPRM

in Los Angeles, California; Portland, Oregon; and Washington, DC.

Thirty-five entities either submitted comments to the docket or

testified at one of the three hearings, including fifteen transit

authorities, three utility commissions, eight States, one engineering

firm, two transit associations, one labor union, one Federal agency,

one transit supplier, two representatives from the people mover

industry, and one transportation consultant.

On December 9, 1993, FTA published its NPRM (58 FR 64855) and today

publishes its final rule, which requires States to oversee the safety

of rail fixed guideway systems.

A. 49 U.S.C. 5330

In general, section 5330 applies only to those States in which a

rail fixed guideway system operates that is not regulated by the

Federal Railroad Administration, and requires any such State to

designate a State oversight agency to be responsible for overseeing the

rail fixed guideway system's safety practices. FTA is required to issue

a rule implementing the program and may withhold Federal funds if a

State fails to implement the rule.

More specifically, the statute describes the responsibilities of

the State and the agency the State designates to provide oversight,

which in most instances will be an agency of the State because most

rail fixed guideway systems operate in only one State. When a rail

fixed guideway system operates in more than one State, however, the

statute permits the affected States to designate any entity, other than

the transit agency itself, to oversee that rail fixed guideway system.

Whether the oversight agency is a State agency or some other

entity, it must require each affected transit agency to create a system

safety program plan, which the oversight agency must review and

approve. The oversight agency must also investigate accidents and

hazardous conditions. Once a hazardous condition has been discovered,

the oversight agency must require the transit agency to correct or

eliminate it.-

If a State has not met these requirements or has not made adequate

efforts to comply with them, the Secretary may withhold up to five

percent of a fiscal year's apportionment under FTA's formula program

for urbanized areas (formerly section 9) attributable to the State or

an affected urbanized area in the State.

B. Summary of the Final Rule

The rule delineates the responsibilities of the State, the

oversight agency, the transit agency, and the FTA.

The State

Under the rule, the primary responsibility of the State is to

designate an entity or entities to oversee the safety of a rail fixed

guideway system. When the rail fixed guideway system operates only

within a single State, that entity or entities must be an agency of the

State; when it operates in more than one State, the affected States may

designate a single entity to oversee that system. In neither case may

the State designate the transit agency as the oversight agency.

To ensure the oversight agency's candid assessment of the probable

cause of a particular accident or unacceptable hazardous condition, the

rule allows the State to enact legislation prohibiting the disclosure

of oversight agency investigation reports.

The Oversight Agency

The rule directs the oversight agency, or an entity acting on its

behalf, to develop a system safety program standard, a document that

establishes the relationship between the oversight and transit agencies

and specifies the procedures that the transit agency must follow. The

system safety program standard must, at a minimum, comply with the

American Public Transit Association's ``Manual for the Development of

Rail Transit System Safety Program Plans'' (``APTA Guidelines''), a

manual widely used throughout the transit industry and available from

the American Public Transit Association (APTA), 1201 New York Avenue,

N.W., Washington, D.C. 20005-3917, or the Federal Transit

Administration, Office of Safety and Security, 400 7th Street, S.W.,

Washington, D.C. 20590. The APTA Guidelines assist in developing safety

practices to reduce the likelihood of unintentional events that may

lead to death, injury, or property damage. In

[[Page 67035]]

addition, the system safety program standard must include specific

provisions addressing ``security'' matters, intentional wrongful or

criminal acts, such as muggings, rapes, murders, assaults, or terrorist

activities. To develop this portion of the system safety program plan,

we suggest that the oversight agency use FTA's ``Transit Security

Procedures Guide'' and ``Transit System Security Program Planning

Guide,'' available from the FTA at the address above.

The oversight agency must require the transit agency to develop a

system safety program plan that complies with the oversight agency's

system safety program standard. By January 1, 1997, the oversight

agency must review and approve, in writing, the transit agency's system

safety program plan; however, the ``security'' provisions of the system

safety program plan must be approved initially by the oversight agency

by January 1, 1998. After the initial approvals, the oversight agency

must review, as necessary, the transit agency's system safety program

plan and determine whether it should be updated. All oversight agency

approvals must be in writing.

The rule allows the oversight agency to prohibit the transit agency

from publicly releasing the ``security'' provisions in the system

safety program plan.

The oversight agency must require the transit agency to conduct

safety audits according to the Internal Safety Audit Process detailed

in checklist number 9 of the APTA Guidelines. Once a year the transit

agency must compile and submit an audit report to the oversight agency

or an entity acting on its behalf for review.

Aside from reviewing the transit agency's safety audit reports, the

oversight agency must conduct on-site safety reviews every three years.

In a safety review, the oversight agency must assess whether the

transit agency's actual safety practices and procedures comply with its

system safety program plan. Once this review is completed, the

oversight agency must prepare a report containing its findings and

recommendations, an analysis of the efficacy of the transit agency's

system safety program plan, and a determination of whether the system

safety program plan should be updated.

The oversight agency must require the transit agency to report the

occurrence of accidents and unacceptable hazardous conditions within a

period of time specified by the oversight agency. The oversight agency

must investigate such reports in accordance with procedures it has

established. The oversight agency may conduct its own investigation,

use a contractor to conduct an investigation, or rely on the

investigation conducted by the transit agency or the National

Transportation Safety Board (NTSB).

After the oversight agency has investigated an accident or

unacceptable hazardous condition, it must require the transit agency to

minimize, control, correct, or eliminate it, in accordance with a

corrective action plan drafted by the transit agency and approved by

the oversight agency.

The oversight agency must submit three kinds of reports to FTA: an

initial submission, an annual submission, and a periodic submission. In

the initial submission, the oversight agency lists the names and

addresses of the rail fixed guideway systems it oversees. This report

must be updated only when that information changes. In the annual

submissions, the oversight agency must submit to FTA a publicly

available report summarizing its oversight activities for the past

year. Periodically, an oversight agency must submit to FTA status

reports of accidents, hazardous conditions, and corrective action

plans. The oversight agency must submit these reports only if FTA so

requests.

The Transit Agency

The transit agency must develop a system safety program plan that

complies with the oversight agency's system safety program standard. It

must conduct safety audits that comply with the Internal Safety Audit

Process, APTA Guidelines, checklist number 9, and draft and submit to

the oversight agency a report summarizing the results of the safety

audit. The transit agency must classify hazardous conditions according

to the APTA Guidelines' Hazard Resolution Matrix. The transit agency

must report, within the timeframe specified by the oversight agency,

any accident or unacceptable hazardous condition that has occurred on

the rail fixed guideway system. The transit agency may, if the

oversight agency so chooses, conduct investigations on behalf of the

oversight agency. Once an investigation has been completed, the transit

agency must obtain the oversight agency's approval of a corrective

action plan and then implement the plan so as to minimize, control,

correct, or eliminate the particular unacceptable hazardous condition

or condition that has caused an accident.

The Federal Transit Administration

The FTA assesses whether the State has complied with the rule or

has made adequate efforts to comply with it. If the FTA determines that

the State is not in compliance or has not made adequate efforts to

comply, it may withhold up to five percent of the amount apportioned

for use in the State or affected urbanized areas under FTA's formula

program for urbanized areas (formerly section 9). Also, FTA receives

reports from the oversight agency.

C. Overview of the Comments

The FTA received 60 comments in response to the NPRM. FTA

considered all comments filed in a timely manner as well as all

statements and material presented at the public hearings on the rule.

The breakdown among commenter categories is as follows:

Transit Agencies.....................................................27

State DOTs............................................................9

Public Utilities......................................................6

Cities................................................................1

Federal Agencies......................................................2

Independent Consultants...............................................8

Trade Associations....................................................2

Safety Societies/Associations.........................................5

In Section II below, we discuss in detail the public comments

addressing issues raised in the NPRM. One such issue, how the term

``rail fixed guideway system'' should be defined, affects the scope of

the rule. Another key issue, how the system safety program standard

should be developed and what it should include, will directly affect

the relationship between the oversight and transit agencies. Most

important, we examine whether the oversight agency should use the APTA

Guidelines or Military Standard 882B or 882C (MIL-STD 882B or 882C) to

develop its system safety program standard. We also examine whether the

system safety program standard should cover the planning, design, and

construction phases of a rail fixed guideway system's life cycle; EPA

and OSHA-type matters; ``security''; and other issues.

Also, we discuss the oversight agency's role in investigating

accidents and unacceptable hazardous conditions. A related issue

concerns whether investigation reports should be kept confidential.

For additional discussion on individual issues, see also the

Section-By-Section Analysis below in Section III.

II. Discussion of the Comments

A. Rail Fixed Guideway System

The first issue is the definition of ``rail fixed guideway

system.'' Statutes give us limited guidance in this regard; section

5330, the authority for this rulemaking, states that it applies ``only

to States that have rail fixed guideway mass transportation systems not

subject

[[Page 67036]]

to regulation by the Federal Railroad Administration.'' Another

provision, 49 U.S.C. Sec. 5302, defines ``mass transportation'' as

``transportation by a conveyance that provides regular and continuing

general or special transportation to the public * * *.'' Finally, 49

U.S.C. Sec. 20102(1), which defines railroads subject to regulation by

the FRA, specifically excludes ``rapid transit operations within an

urban area that are not connected to the general railroad system of

transportation.'' Of mass transportation systems, generally, only

commuter railroads are regulated by the FRA. Therefore, we asked in

both the ANPRM and the NPRM whether we should adopt a narrow definition

and include only light and heavy rail systems or a broad definition and

include other rail systems, such as monorails, inclined planes, trolley

systems, and funiculars, as well.

Many commenters to the ANPRM did not address this issue. Those that

responded directed their comments to specific issues; for instance, six

commenters discussed including people movers, while only two commenters

proposed a definition for FTA's consideration. In the NPRM, FTA

proposed to define ``rail fixed guideway system'' as

Any public transportation facility not regulated by the Federal

Railroad Administration, which occupies a separate right-of-way

exclusively for public transportation or uses a steel-wheeled

catenary or other rail system sharing a right-of-way with other

forms of transportation and, which is included in the calculation of

fixed guideway route miles under section 9 of the FT Act.

As we explained in the preamble to the NPRM, this definition would

cover light and heavy rail, cable cars, trolleys, people movers, and

inclined planes so long as their mileage is included in the calculation

of fixed guideway route miles under section 9 of the FT Act. We further

noted that the Morgantown People Mover, which is not used in the

calculation of route miles under the section 9 formula program, would

not be covered by the proposed rule, while the Detroit People Mover,

which is used in the calculation of the section 9 formula would be

covered. We further noted that the definition also would not cover

rubber-wheeled trolley buses that use a catenary system, as they are

subject to motor vehicle regulations.

Many of the commenters to the NPRM urged FTA to adopt the narrow

definition, with most of them suggesting that the definition be limited

to light and heavy rail systems only. In support of their contention,

some of these commenters noted that in the past, NTSB had recommended

that FTA oversee the safety of rapid rail transit systems only,

although these commenters stated that light rail systems should be

covered by the rule as well. Concerning people movers, inclined planes,

amusement rides, funiculars, historical trolleys, cable cars, and other

rail transit systems, these commenters opposed their inclusion, opining

that they do not present the same level of risk to public safety as

posed by heavy and light rail systems.

NTSB also commented on this issue by stating that although it

had no accident investigation experience with people movers or

incline planes that would provide a basis to determine if these

systems should be covered by the FTA's regulations, the Board

believe[s] that the safety of any system that regularly transports

people should be monitored by an appropriate State or local agency.

Limiting the definition of a rail fixed guideway system to those

systems used by an urbanized area in the calculation of fixed

guideway route miles under Section 9 of the Federal Transit Act

would apparently exclude some of these systems from the proposed

regulation. Further, it is possible that an urbanized area could not

count in the statutory formula to determine Section 9 Federal funds

the rail route miles of a particular system to avoid having the

system covered by the proposed oversight regulation. In short, the

Safety Board questions the need for the Section 9 limitation to the

definition.

FTA Response. Although most commenters recommended that we cover

only light and heavy rail systems, we agree with the NTSB that ``any

system that regularly transports people should be monitored by an

appropriate State or local agency.'' Hence, the rule covers inclined

planes, monorails, trolleys, automated guideways, and funiculars along

with light, rapid, and heavy rail systems. We did, however, change the

definition to clarify that guided busways are not covered.

We also made another change in light of NTSB's assertions that the

proposed definition may exclude some systems that are not used to

calculate fixed guideway route miles under FTA's formula grant program

for urbanized areas. We do not believe this would be the case because

FTA's grant program is based, in part, on the amount of ``fixed

guideway route miles'' within an urbanized area. It is therefore in the

urbanized area's interest to include as many systems as possible.

Moreover, in most instances, a system that receives Federal funding

under FTA's formula grant program for urbanized areas would have its

mileage included in the calculation. The opposite, however, is not

true; there are systems whose mileage is used in the calculation that

do not receive funding under FTA's formula grant program for urbanized

areas. That is why we proposed covering those systems that are used in

the calculation instead of just certain recipients of FTA funding; it

is actually a broader category. Nevertheless, we have added a provision

to cover any system that receives funding under FTA's formula grant

program for urbanized areas or is used in the calculation of ``fixed

guideway route miles.'' This definition should cover most rail mass

transit systems not regulated by the FTA.

B. System Safety Program Standard

Section 5330 requires FTA to issue regulations that direct the

State oversight agency to develop ``a safety program plan for each

[rail] fixed guideway mass transportation system in the State.'' In the

NPRM, we proposed to require the oversight agency to adopt a system

safety program standard, which a transit agency would then use to

develop its system safety program plan, the document used by the

transit agency to ensure that it uses proper safety practices and

procedures.

The NPRM further proposed that the oversight agency's ``system

safety program standard'' comply, at a minimum, with the American

Public Transit Association's ``Manual for the Development of Rail

Transit System Safety Program Plans,'' (``APTA Guidelines''). In the

preamble to the NPRM, we noted that we had considered adopting Military

Standard 882B (MIL-STD 882B), which has been subsequently superseded by

MIL-STD 882C, but found it unnecessary because APTA had developed its

Guidelines by adapting MIL-STD 882B to the transit industry.

While most commenters favored the use of the APTA Guidelines, one

commenter strongly favored the use of MIL-STD 882B or 882C to develop

the system safety program standard. This commenter noted that:

[T]he discussion of the Proposed Rule indicates that the APTA

requirement is equivalent to MIL-STD 882B, and that the APTA

standard can therefore be used in place of the MIL-STD. It should be

noted that the APTA standard is not equivalent to the military

standard. There are significant and important philosophical

differences between the two documents. The most important of the

differences is that MIL-STD 882 specifies that system safety be

started very early in the project, that it must be involved in the

design of the system, that a specific order of precedence must be

followed to increase safety, and that risk assessments must be based

upon probability and severity. The APTA standard emphasizes the use

of system safety for operational systems after they have been

completed and put into service,

[[Page 67037]]

indicates that system safety is mostly concerned with operations and

procedures, and implies that safety can be `audited' into a system.

While the APTA Manual does mention that system safety is needed

during the design phases, the emphasis is clearly on later phases *

* * . Another potential concern with the APTA Manual is that it

describes the audit process in terms of determining whether or not

the transit agency is following its system safety program, but is

silent on the issue of determining whether or not that program can

be expected to accomplish its goals. While this is appropriate for

an organization such as APTA, it may not be appropriate for an

Oversight Agency. It may be important for the Oversight Agency to

review the Transit Agencies' plans with an eye toward trying to

determine whether or not the plan is likely to result in an

effective system safety program * * * .

This commenter also noted that MIL-STD 882C incorporates changes

concerning ``Software Safety.''

FTA Response. This commenter has certainly made a convincing case

for the adoption of MIL-STD 882B or 882C, and we emphasize that,

although we have adopted the proposal as published in the NPRM, we have

not precluded the use of either of those Military Standards. Instead,

we have adopted the APTA Guidelines as a minimum standard the oversight

agency must meet or exceed; because the APTA Guidelines were derived

from MIL-STD 882B, an oversight agency that bases its system safety

program standard on either MIL-STD 882B or 882C should meet or exceed

the requirements of the APTA Guidelines. Moreover, by adopting the APTA

Guidelines as a minimum standard, we accomplish two objectives:

establishing a nation-wide baseline standard and giving a State more

flexibility and control in developing its own program.

We do, in fact, urge the oversight agency to assess the APTA

Guidelines in relation to MIL-STD 882B or 882C and decide which one

best addresses its needs. We believe that an oversight agency that uses

either MIL-STD 882B or 882C as a basis for its system safety program

standard is well served, and we urge an oversight agency to at least

consider those Military Standards in developing its own oversight

program.

Although we have not mandated the use of MIL-STD 882B or 882C, we

have addressed one of the concerns of this commenter, by adding a

provision in the rule to require the oversight agency to determine the

efficacy of the transit agency's system safety program plan and require

the transit agency to update it, if necessary.

This commenter also commented that the MIL-STD 882C's section on

``Software Safety'' is ``of critical importance to modern transit

systems''; we recommend that both the oversight agency and the transit

agency assess whether that section meets the safety needs of the ``rail

fixed guideway system.''

C. System Safety Program Plan--the Six Factors.

As mentioned above, under the NPRM the transit agency was to

develop a system safety program plan that complied with the oversight

agency's system safety program standard. In the preamble to the NPRM,

we suggested that the system safety program plan should: (1) be

endorsed by top management; (2) establish the safety goals and

objectives of the transit agency; (3) identify safety issues; (4)

require cooperation within the transit agency to address the identified

safety issues; (5) recognize that achieving safety goals and objectives

may require the involvement of entities other than the transit agency;

and (6) provide a schedule for the implementation and revision of the

system safety program plan. We then asked for comment on whether we

should require these six factors in the final rule.

Only seven commenters responded to this issue, and none of them

opposed the general concept of the six factors. Several of the

commenters noted, however, that all six factors are included in the

APTA Guidelines, making them unnecessary if FTA incorporates the APTA

Guidelines into the final rule.-

-FTA Response. Since the six factors are included in the APTA

Guidelines, which we have incorporated by reference into the final

rule, the oversight agency must require the transit agency to address

all six factors in its system safety program plan.

D. Planning, Design, and Construction.

In the preamble to the NPRM, we noted that section 5330 may be read

To apply only to the operation of rail fixed guideway systems,

which would lead to the conclusion that the NPRM covers only those

rail fixed guideway systems already in existence, or other systems

only when they commence operations. On the other hand, if we were to

interpret section [5330] to apply during the planning, design, and

construction phases of a system, we would then have to decide when

the State would be required to comply with this proposed rule. This

would be especially difficult for those States where systems are in

the planning stage, which can be a lengthy process, and it would be

difficult to specify at what point the oversight agency would have

to be established.

Of the commenters that responded to this issue, only a few favored

covering the pre-operational phases of the rail fixed guideway system's

life cycle. One of these commenters stated that ``[t]o ensure that the

design of facilities and systems results in optimal safety, the system

safety approach has been shown to be highly effective and cost

efficient.''

The vast majority of the commenters were against covering the

planning, design, and construction phases in this rule, stating in

effect, that other mechanisms, i.e., FTA's Program Management Oversight

(PMO) process and the construction contract itself can ensure that

safety is planned, designed, and constructed into new rail fixed

guideway systems.

FTA Response. Although we agree that a system safety program plan

should cover the planning, design, and construction of a ``rail fixed

guideway system,'' the language of section 5330 leads us to conclude

that it covers only operating systems or systems about to commence

operations. Section 5330 directs a State to establish and carry out a

``safety program plan for each [rail] fixed guideway mass

transportation system in the State,'' never mentioning the planning,

design, and construction phases of a system's life cycle. Moreover,

because of the lengthy planning, design, and construction phases of a

system's life cycle, we believe that it is impractical, especially for

a State planning its first ``rail fixed guideway system,'' to require

that a State create a bureaucracy years before a single passenger is

served, when there are other mechanisms available to ensure that safety

is designed, planned, and constructed into a new ``rail fixed guideway

system.'' This does not mean, however, that a State is precluded from

creating an oversight agency that oversees the planning, design, and

construction of a ``rail fixed guideway system.'' On the contrary, we

encourage the States to do so, although we do not, under this rule,

require it. Also, we encourage the oversight agencies to work with PMOs

to ensure that safety is designed, planned, and constructed into new

``rail fixed guideway systems.''

E. Accountability Factor.

While drafting the NPRM, we were concerned that the development of

a State Safety Oversight Program would not be complete without some

mechanism to ensure transit agencies' commitment to safety. To

``institutionalize'' this commitment and to meet the requirements of

section 5330, we developed the ``accountability factor,'' in which the

oversight agency would require a transit agency to

[[Page 67038]]

identify tasks critical to safety and the persons responsible for

performing those tasks. This concept was derived from section 207 of

MIL-STD 882B, which concerns the ``identification of safety-critical

equipment and procedures.'' The ``accountability factor'' was intended

to help the transit agency identify and correct problems.

Most of the commenters on this issue opposed the inclusion of the

``accountability factor'' in the rule because, in their opinion, it

would not achieve its intended purpose of making systems safer. For

instance, one commenter stated such a requirement would allow the

oversight agency not just to oversee but to micromanage the transit

agency; another claimed that it would become a ``paperwork'' exercise

and actually hinder the development of safety practices and procedures.

Yet another commenter stated that it would be used to ``fix'' blame.

One commenter argued that the ``accountability factor'' was a

``misapplication'' of section 207 of MIL-STD 882B, which, according to

this commenter, was developed to verify compliance with safety

equipment and procedures, an activity distinct from system safety

program activities. Last, some commenters indicated that the

``accountability factor'' was not necessary under the rule because a

well-drafted system safety program plan incorporates accountability

into it.

Although the NTSB favored the inclusion of the ``accountability

factor'' in the final rule, it did not elaborate on its reasoning.

FTA Response. The final rule does not include the ``accountability

factor'' because on balance, we have concluded that the oversight

agency is best suited to meet the directives of section 5330(c)(1) to

``establish[ ] * * * lines of authority [and] levels of responsibility

and accountability * * *'' for the rail fixed guideway system. We note

that the APTA Guidelines checklist numbers 1 through 5 stress the

development of a concept similar to the proposed ``accountability

factor.''

F. EPA and OSHA Requirements.

We asked whether the system safety program plan should address

matters covered by the Occupational Safety and Health Administration

(OSHA) and the Environmental Protection Agency (EPA). Four argued that

it should; three were opposed. Those in favor supported a

``comprehensive approach'' to safety in which various safety issues or

``disciplines'' are integrated for a total prevention effort. Those in

opposition were concerned about creating overlapping jurisdiction

between the oversight agency and the State agency with authority to

enforce the EPA and OSHA laws and regulations.

FTA Response. By adopting the APTA Guidelines, which address OSHA

and EPA matters in System Safety Checklist numbers 19 and 20,

respectively, we have required that these matters be included in the

system safety program plan. Although this allows the possibility of

jurisdictional conflicts among State agencies, the benefits of the

oversight agency's adopting a total approach to safety outweigh this

possibility. Moreover, a State can plan to reduce or eliminate any

duplicative jurisdiction between the oversight agency and any other

State agency with jurisdiction over EPA and OSHA matters.-

G. Security.

In the preamble to the NPRM, we asked whether the system safety

program plan should address security matters, and if so, what

specifically should be included. Many commenters responded to this

question, most negatively; some contended that security matters should

be handled by law enforcement personnel and not by transit safety

professionals, others opined that requiring the system safety program

plan to address security matters is outside the scope of section 5330,

and others stated that whether transit security matters should be

included in the system safety program plan should be decided by State

and local transit officials and not mandated by the Federal government.

More particularly, one commenter noted that ``security is a

separate issue which requires separate treatment, separate techniques,

separate concerns, and separate disciplines.'' This commenter

continued:

[A]lthough, many times the public may perceive their safety as

being `freedom from assault or attack from other individuals',

normally professionals in the industry define safety in association

with unintentional events or conditions (accidents), whereas,

security is defined as being associated with intentional acts

(usually illegal acts). The causes and the control measures for

these two situations (safety and security) are entirely different *

* *. One good reason for keeping these separate is the different

type of management required. Typically, effective management of

security requires law enforcement type management philosophies,

whereas effective management of safety requires entirely different

(and sometimes opposite) kinds of thinking. Management of these two

functions must be separated, because of the different skills,

philosophies, management styles, and kinds of managers required.

Other commenters noted another important difference between safety

procedures and security measures: Safety procedures, policies, and

processes can be made public and still be effective, whereas security

measures, to be effective, must be kept confidential. Thus, these

commenters reasoned, security measures should not be included in a

publicly available document, such as a system safety program plan.

The commenters in favor of requiring the system safety program plan

to address security matters focused on the similarities between

security measures and safety issues. Most notably, these commenters

stated, safety and security procedures are both forms of risk

management; ``[s]afety is the management of the risk to persons and

property from accidental or negligent loss * * [while] security is the

management of the risk to persons and property from criminal acts.''

Last, some commenters contended that emergency planning and

response procedures were the same for both safety and security events.

Four commenters recommended that FTA include security only when it

relates to emergency planning and response.

FTA Response. Because we agree with the commenter who noted that

safety and security are both forms of risk management and because of

recent terrorist acts, we have decided to require the inclusion of

security considerations in the system safety program plan. In response

to another commenter, however, we have added a provision to the rule

that will allow the security portion of the system safety program plan

to be barred from public disclosure.

We disagree, however, with the argument that Congress did not

intend section 5330 to include security. Section 5330(c)(1) states that

``[a] State meets the requirement of this section if the State--

establishes and is carrying out a safety program plan for each [rail]

fixed guideway mass transportation system in the State * * *''

[emphasis added]. According to Webster's Third New International

Dictionary, ``safety'' means ``the condition of being safe; freedom

from exposure to danger, exemption from hurt, injury, or loss,''

whereas ``security'' means ``the quality or state of being secure: as

(a) freedom from danger: safety.'' It seems clear, therefore, that the

meaning of safety encompasses the meaning of security. Moreover,

according to the System Safety Glossary published in 1985, by the

Transportation Safety Institute ``safety'' is defined as ``[a]

reasonable degree of freedom from those conditions that can cause

injury or death to personnel, damage to or loss of equipment or

[[Page 67039]]

property; freedom from danger''; this would certainly cover intentional

acts. Similarly, according to the Transit Security Program Planning

Guide recently published by the FTA, ``security'' means ``freedom from

intentional danger,'' while ``safety'' means ``freedom from danger.''

Therefore, section 5330 can be interpreted, and we do, to require the

inclusion of security in the system safety program plan.

Other commenters indicated that security should not be included in

the system safety program plan because safety and security are as

different from each other as apples from oranges. One transit agency

presented safety and security as two different disciplines requiring

two different approaches and two different kinds of trained personnel.

Thus, this commenter reasoned, the system safety program plan should

not address security matters. In our view, however, safety and security

risks are interrelated, especially from the perspective of transit

passengers. We agree with the commenter who wrote:

[A]lthough the disciplines have been separated in their normal

application, there is a trend for a united knowledge base of safety

with security so that any type of hazard is examined for its

implication as a security type of problem. As with other

disciplines, safety and security requirements may be at odds

requiring careful analysis of the potential hazards and threats

against the transit system and the development of appropriate trade-

off studies. The Transit Safety Professional needs to have security

analyses in the curriculum of study and certification to ensure

awareness of the issues and concerns related to security. In

addition, security systems themselves require safety analyses to

ensure that they are properly covered.

We also disagree with the commenter who recommended that only

emergency response procedures be included in the system safety program

plan. We note that the APTA Guidelines already contain a provision

concerning emergency preparedness. While emergency preparedness is

itself a valuable activity, it does not prevent either intentional or

unintentional acts from occurring. An emergency preparedness plan is

used to develop a response to an event, while the overall system safety

program plan develops procedures to reduce the likelihood of either

intentional or unintentional events from occurring.

H. Biennial Safety Reviews

In the proposed rule, the oversight agency would comprehensively

review, on-site, the rail fixed guideway system's safety practices

every two years. Most commenters objected to this provision. Some

maintained that a review every two years was unnecessary and

burdensome; in support of their contention, they mentioned APTA's Rail

Safety Audit Program, in which auditors employed by APTA review a rail

fixed guideway system's safety practices every three years. They

maintain that a three-year review schedule adequately addresses safety

needs. One commenter indicated that APTA adopted a three-year schedule

to give rail fixed guideway systems time to take corrective and other

recommended actions. Another commenter, a State agency already

overseeing rail fixed guideway systems, stated that it does not

independently conduct on-site reviews, but instead observes the APTA

auditors review a system; this commenter concluded that this approach

works well for it and the rail fixed guideway systems under its

jurisdiction. Some commenters urged us to specifically allow oversight

agencies to use the APTA Rail Safety Audit Program.

Other commenters favored a flexible approach, in which the

oversight and transit agencies schedule reviews appropriate for the

age, size, and complexity of the rail fixed guideway system. One

commenter recommended that we specify the exact requirements of a

safety review.

FTA Response. Agreeing generally with the commenters, we have made

the rule more flexible. For instance, the rule requires the oversight

agency to review the transit agency's safety practices at least every

three years instead of every two, as we had proposed. The oversight

agency may conduct these reviews more frequently if it chooses.

Moreover, the rule expressly allows the oversight agency to use a

contractor to conduct the required review, which allows the oversight

agency to use the APTA Rail Safety Audit Program or any other qualified

contractor to conduct safety reviews.

Although one commenter had urged us to define specifically the

requirements of a safety review, we have declined to do so. Instead,

the oversight agency should determine for itself, based on the age,

size, and complexity of the individual rail fixed guideway system

within its jurisdiction, the exact extent of the review; however, it

must be comprehensive, i.e., cover all matters included in the transit

agency's system safety program plan.

The process used by the California Public Utilities Commission

(CPUC) illustrates how the rule can be flexible. Instead of using its

staff to conduct comprehensive safety reviews, CPUC staff accompany and

observe APTA auditors who perform a comprehensive safety audit. This

system allows CPUC personnel to cover the daily operation and

maintenance activities of the rail fixed guideway system and conduct

in-depth reviews of particular activities on an ``apparent need''

basis. For instance, CPUC's staff conducted in-depth reviews of track

maintenance practices at five different rail fixed guideway systems. In

short, an oversight agency could conduct its own safety reviews,

contract them out completely, or adopt an approach similar to CPUC's,

in which both a comprehensive safety review and an in-depth review of a

particular system component is conducted by another contractor or

oversight agency personnel.

One commenter recommended that the extent and frequency of safety

reviews depends on the particular phase of the rail fixed guideway

system's lifecycle. This commenter recommended that a safety audit be

performed during the preliminary engineering phase to assure properly

defined criteria, during the final design stage to assure that the

criteria has been included in the specifications, during pre-revenue

testing to assure the systems have been properly installed and the

system tested and safety certified, then every two to three years when

the system is operational, and more frequently if there are serious

problems. We agree with this commenter, although we have not adopted

his suggestions formally in the rule. Instead, we strongly urge

oversight agencies to consider these kinds of factors when establishing

a safety review process.

I. Safety Audits

FTA proposed to require the transit agency to conduct a ``safety

audit,'' a ``methodical, ongoing, internal examination of a transit

agency's safety practices to determine whether they comply with the

policies and procedures required under the transit agency's system

safety program plan.'' The results of these safety audits were to be

compiled every six months by the transit agency into a report to the

oversight agency, which would review those reports as part of its

monitoring function required under section 5330.

Nineteen commenters responded to this proposed safety audit

process, with most of them objecting that such audits amount to a

``paperwork exercise'' that could be detrimental to the safe operation

of a rail fixed guideway system. They argued that the ``safety audits''

and the ``biennial reviews'' were redundant and that auditing

continuously was not necessary to

[[Page 67040]]

ensure the safe operation of a rail fixed guideway system. Some of

these commenters recommended that FTA adopt a system of random periodic

checks similar to the APTA review process; others recommended that the

oversight agency set the timeframe for safety audits by the transit

agency. Still others recommended that the frequency of safety audits be

linked to the age, type, and speed of the system, maintaining that

different rail fixed guideway systems have different safety auditing

needs.

FTA Response. FTA had intended the ``safety audit'' process to be

used in addition to the ``Internal Safety Audit Process'' in checklist

number 9 of the APTA Guidelines, which apparently confused the

commenters. To clarify our intent, we have withdrawn the proposed

definition, ``safety audit,'' and now require the oversight agency to

develop a process that complies with APTA's ``Internal Safety Audit

Process.'' Although we make this change, we nevertheless encourage

transit and oversight agencies to view safety and the safety auditing

process as a routine, daily matter. As noted in the APTA Guidelines,

``[t]he Internal Safety Audit Process * * * requires constant attention

and activity.''

To ensure that both transit and oversight agencies view the safety

auditing process as a ``constant activity,'' we have retained the

requirement for the transit agency to complete and submit safety

auditing reports to the oversight agency, a requirement in the APTA

Guidelines, which states that audit reports are to be used as a

``management tool.'' FTA had proposed semi-annual reports, which most

commenters objected to as a ``paperwork exercise.'' In response, we

have changed the reporting time period from semi-annually to annually

to reduce the paperwork burden.

J. Accident

To focus oversight agency accident investigations on serious events

that may show a systemic safety problem, FTA proposed to define

``accident'' as ``any event involving the operation of a rail fixed

guideway system resulting in: (1) [D]eath directly related to the

event; (2) [i]njury requiring hospitalization within twenty-four hours

of the event; (3) [a] collision, derailment, or fire causing property

damage in excess of $25,000; or (4) [a]n emergency evacuation.'' The

vast majority of commenters opposed this definition and recommended

numerous ways to change it.--

For instance, several commenters requested that FTA limit the

definition to those events involving revenue service operations, thus

excluding incidents occurring in rail yards. According to the

commenters, these kinds of incidents are covered by OSHA rules;

eliminating them from the rule, these commenters reasoned, would avoid

duplicative and perhaps conflicting jurisdiction between the oversight

agency and the State and Federal agencies responsible for enforcing

OSHA regulations. --

Some commenters recommended that any incident involving trespassers

or employees be excluded from the definition. These commenters

maintained that events involving trespassers would not necessarily

indicate a systemic safety problem; in other words, it is impossible to

protect against trespassers. Several commenters maintained that events

involving employees should not be covered to avoid duplicative

jurisdiction between the oversight agency and the State and Federal

agencies regulating the workplace. --

Other commenters recommended that FTA exclude certain kinds of

personal injuries from the definition, stating that it is difficult, if

not impossible, for a transit agency to monitor every slip, trip, or

fall that occurs at a rail fixed guideway system. They further maintain

that these kinds of injuries are not sufficiently serious to trigger an

investigation by the oversight agency. --

Still other commenters noted that, in most cases, a transit agency

would be unable to determine whether a person was hospitalized as a

result of the injury. Transit agency personnel operating in large

metropolitan areas would be forced to contact dozens of hospitals, a

task that would strain its resources; moreover, many hospitals do not

release this kind of information to the public. --

Several of these commenters recommended that FTA define accident,

in part, as any injury in which a person is treated at the scene or is

transported from the scene by medical personnel. This change would ease

the administrative burden on the rail fixed guideway system, these

commenters contended. --

Many commenters strongly objected to the $25,000 property damage

threshold, with most of them indicating that property damage estimates

are subjective and become obsolete over time; others contended that

$25,000 was too low. Some recommended that FTA annually adjust the

dollar amount for inflation, and others recommended that the dollar

amount be set by agreement between the oversight and transit agencies.

--

Several commenters recommended that FTA define an emergency

evacuation, with one proposing that it be limited to circumstances in

which emergency doors and exit routes are used, thus excluding

instances when passengers are asked to leave a train disabled in a

station. --

FTA Response. In light of the comments, FTA has made several

changes to the definition of accident. For instance, we have limited

the definition to only those events that occur during the revenue

service operation of the rail fixed guideway system, which eliminates

from the rule any injuries or deaths to workers in rail yards. We made

this change, not because these are unimportant events, but to avoid

overlapping jurisdiction among State agencies. We do, however,

encourage the oversight agency to establish a relationship with the

State agency having jurisdiction over these matters and share

information, thus making the workplace safer for rail fixed guideway

system employees. --

We disagree with commenters asking us to exclude incidents

involving trespassers from the rule. Although we sympathize with the

perspective of transit agencies, we believe that any death or injury

requiring immediate medical treatment away from the scene of the event,

which occurs while the rail fixed guideway system is in revenue

service, should be investigated by the oversight agency. --

We agree with those commenters who objected to the hospitalization

requirement and have changed the rule to state that an accident has

occurred if a person has been injured and ``immediately receives

medical treatment away from the scene of the accident.'' This language

is used in FTA's drug and alcohol rules, as well. --

Although several commenters asked us to remove property damage

dollar thresholds, we did not do so. Instead, we have raised the dollar

threshold to $100,000, which should reduce the number of accidents

involving property damage. --

Last, we have removed the portion of the definition concerning

emergency evacuations. In many instances, a serious event involving the

evacuation of a mass transit vehicle also will involve a death, an

injury requiring immediate medical treatment away from the scene, or

more than $100,000 in property damage, any of which, by themselves,

will trigger an oversight agency investigation. Hence, by making this

change we have focused an oversight agency's resources on serious

events involving the emergency evacuation of a mass transit vehicle. --

[[Page 67041]]

K. Hazardous Condition

FTA proposed to define a ``hazardous condition'' as ``any condition

which may endanger human life or property,'' and ``unacceptable

hazardous condition'' as ``a hazardous condition determined to be an

unacceptable hazardous condition using the hazard resolution matrix of

the `Rail Safety Audit Manual' published by APTA.'' FTA further

proposed to require the oversight agency to investigate only

unacceptable hazardous conditions, whereas the transit agency was to

correct or eliminate any hazardous condition. --

Several commenters were confused by these two definitions and one

maintained that the definitions were understandable only in conjunction

with the APTA Guidelines checklist number 7. --

Another commenter argued that FTA should not adopt the APTA

Guidelines' hazard classification process. This commenter stated that

[T]he Hazard Resolution Matrix contained in the APTA guidelines

is an inadequate indicator of when an investigation should be

triggered. As an example, it is well-known that currently-operating

modern escalators frequently cause minor injuries to patrons

(particularly children). Following the APTA guidelines, one would

categorize the hazard associated with an operating escalator in

Category III (marginal-minor injury). Furthermore, since escalators

are usually operating more often than not, the hazard exists all the

time the escalator is operating. Again following the APTA

guidelines, the hazard probability would be in Category A--frequent-

likely to occur frequently (individual); continuously experienced

(fleet/inventory). Under the Hazard Resolution Matrix of the APTA

guidelines, this would be a Category III-A, which would be labeled

`unacceptable.' Following the reasoning proposed in the NPRM, all

escalators would continuously have to be corrected or eliminated by

all transit agencies, and all escalator accidents investigated by

the oversight agency. Since escalators cannot be corrected (at least

so far no one has been successful in creating an escalator that

doesn't have these hazards), all escalators would have to be

eliminated from transit properties.

--In contrast, another commenter supported the use of the APTA

Guidelines Hazard Resolution Matrix because, according to this

commenter, it has been adopted and practiced by more than 95 percent of

the affected systems. --

Several commenters objected to FTA's proposal to require transit

agencies to ``correct or eliminate any hazardous condition,'' which

they characterize as an ``impossible chore.'' In the words of one

commenter, ``[i]f every transit agency was required to eliminate every

condition that may cause minor injury * * *, all of its resources would

be extended in attempting to eliminate these potential minor threats,

with little resources left to run the transit system.'' One commenter

recognized this problem also, and suggested that FTA require that

hazardous conditions be corrected, eliminated, or controlled. One

commenter maintained that the oversight agency should not be required

to investigate any hazardous condition. --

FTA Response. Although FTA has made some changes to the rule, we

have not changed the definitions. The terms ``hazardous condition'' and

``unacceptable hazardous condition'' must be read in conjunction with

the APTA Guidelines, particularly with the hazard resolution process,

checklist number 7. To identify hazards, FTA has mandated the use of

this particular process by transit agencies, even if a transit agency

has used MIL-STD 882B or 882C to develop its system safety program

plan. We have mandated this process, despite some commenters who

opposed its adoption, because it is widely used and accepted throughout

the transit industry. --

Also, the rule requires the oversight agency to investigate

unacceptable hazardous conditions as well as accidents. Although at

least one commenter opposed requiring the oversight agency to

investigate unacceptable hazardous conditions, section 5330(c)(2)(B)

requires the oversight agency to ``investigate hazardous conditions.''

To focus State resources on serious safety issues, FTA has interpreted

section 5330 narrowly, thus requiring an oversight agency to

investigate only ``unacceptable hazardous conditions.'' --

We agree with the commenters who maintained that not all hazardous

conditions can be corrected or eliminated. Risk cannot be taken out of

life. Therefore, we require a transit agency to correct or eliminate

any hazardous condition if possible, and if not, the transit agency

must either minimize or control it. For instance, one commenter noted

that escalators are hazardous conditions, which can be corrected only

by eliminating the escalator. Under this rule, the transit agency is

not required to eliminate escalators, but it is required to minimize or

control the risks associated with escalators. A transit agency can take

one or more of several actions to minimize these risks, such as

installing an emergency shut-off switch, retrofitting the escalator

with additional safety devices, posting instructions on how to avoid

accidents on escalators, or developing educational programs for

children on how to properly use escalators. Many transit agencies have

addressed the safety issues of escalators, but we urge them to consider

other measures to make escalators safer, especially for children. --

L. Investigations

FTA proposed to require the oversight agency to develop its own

investigation procedures and to investigate accidents, except those

being investigated by the National Transportation Safety Board (NTSB),

and all unacceptable hazardous conditions. --

Twenty-seven commenters responded to issues arising from this

proposal. Although one commenter stressed that the oversight agency

should not conduct any investigations, most commenters focused on the

oversight agency's role in investigating an ``accident'' or

``unacceptable hazardous condition.'' The vast majority of these

commenters maintained that the oversight agency should not conduct its

own independent investigation, but should focus on the process used by

the transit agency in conducting investigations. These commenters noted

that the transit agency must be responsible for operating its own

system; an independent investigation by the oversight agency may

implicitly usurp the authority of the transit agency over safety and

other operational matters, according to these commenters. Others

insisted that although the oversight agency's primary responsibility

was to ensure that the transit agency properly conducted

investigations, it should nevertheless be authorized to investigate

extraordinary events. One commenter maintained that the oversight

agency should not investigate an ``accident'' or ``unacceptable

hazardous condition'' unless the transit agency's investigation is

inadequate. --

FTA Response. Despite the opinion of at least one commenter, the

oversight agency is required under section 5330 to investigate

accidents and hazardous conditions. As discussed above, we proposed to

define ``accident'' in a manner to focus the oversight agency's

investigation on serious events of a systemic nature. Similarly,

instead of proposing to require the oversight agency to investigate all

``hazardous conditions,'' we proposed that it investigate only

``unacceptable hazardous conditions.'' We have not changed this basic

scheme. -

Moreover, we believe that our proposal was misunderstood, and we

seek now to clarify the role of the oversight agency in conducting

investigations. The oversight agency is not only responsible for

developing its own investigatory procedures, it is

[[Page 67042]]

responsible for determining how it will investigate. An oversight

agency may contract for this service; some may elect to use APTA's

Panel of Inquiry, others may choose to use other experts. The oversight

agency may allow the transit agency to conduct some or all

investigations. The oversight agency may choose to investigate all

``accidents'' and ``unacceptable hazardous conditions'' or investigate

some and contract for the investigation of others. The rule is flexible

in this regard, just as we had proposed in the NPRM. Although the

examples set forth above are not exhaustive, ultimately, unless the

NTSB is conducting an investigation, either the oversight agency or an

entity acting on its behalf must investigate ``accidents'' and

``unacceptable hazardous conditions.''

We do, however, encourage the oversight agency to either directly

or by contract conduct independent investigations. Moreover, we

disagree strongly with commenters who maintain that the oversight

agency should focus on the process used by the transit agency to

conduct investigations. The purpose of this rule is to ensure that a

rail fixed guideway system operates safely and that the systemic causes

of ``accidents'' and ``unacceptable hazardous conditions'' are

addressed; focusing on process in this context, therefore, is

misplaced. Rather, the focus of the oversight agency should be to

assist the transit agency in preventing ``accidents'' and ``hazardous

conditions.''

M. Confidentiality of Oversight Agency Investigation Reports

Several commenters to the ANPRM requested that we include a

provision in the rule barring the discovery or the use in evidence of

any investigative report compiled as a result of this rule. In the

NPRM, we noted that section 5330 did not specifically address this

matter, and hence, we doubted that we could make such a mandate.

Nevertheless, we asked whether we should adopt a provision which would

require that the oversight agency investigation reports be kept

confidential.

Almost every commenter favored the adoption of such a provision.

One commenter wrote:

[T]he investigations at rail fixed guideway systems are often

confidential * * * and thus they are not subject to discovery or

public disclosure. If the information gathered by the states becomes

a public document, then the FTA will be building into this

regulation a serious conflict between the state agencies and the

[rail] fixed guideway systems. In order to ensure better gathering

of information by the states, and to maintain unreserved cooperation

with the local transit systems, it is strongly recommended that the

information gathered by the states must be protected from

disclosure.

Another commenter wrote ``[w]e submit that a discovery exemption is

critical to the efficient operation of the oversight agency, as it

would protect the agency's limited staff and resources from the

inundation of subpoenas and other discovery requests.'' Yet another

commenter wrote that

[The rail fixed guideway system] believes that FTA should

provide protection for Attorney-Client privilege under the proposed

rule to include investigative materials and materials pertaining to

`hazardous condition' discussions or findings by the State oversight

agency. If FTA does not have the statutory authority to provide such

protection, it should require the States to do so. The loss of [the

rail fixed guideway system's] Attorney-Client privilege over such

documents would have a serious negative economic impact on third

party litigation. -

The remaining commenters maintained that although the issue is an

important one, FTA should remain silent on it.

FTA Response. FTA agrees strongly that the oversight agency

investigation reports should be kept confidential; thus, we have added

a provision to the rule permitting a State to require that these

reports be kept confidential, and we encourage strongly that the State

authorize the oversight agency to do so.

N. Certified Transit Safety Professional.

FTA proposed to require the use of Certified Transit Safety

Professionals primarily in response to comments to the ANPRM and

related public hearings, which reflected concern throughout the transit

industry about the expertise necessary to carry out an effective

oversight program. These commenters maintained that an effective

oversight program could not be achieved without the use of certified

safety professionals.

In response to these comments, the NPRM proposed to require both

the oversight agency and the transit agency to use the services of a

Certified Transit Safety Professional, either from within their own

organizations or under contract, to comply with the requirements of the

rule. A Certified Transit Safety Professional was defined as one who

had ``successfully completed the Safety Professional Certification

requirements established by the Board of Certified Safety

Professionals, * * * or, a registered professional engineer in system

safety.'' FTA also sought comment on whether it should require a

Certified Transit Safety Professional to have a minimum number of years

of experience in transit safety.

Forty-seven comments were received on this matter, which was among

the most controversial proposals in the NPRM. Although most commenters

opposed the inclusion of this concept in the final rule, some

recommended changes to the definition of certified transit safety

professional. For instance, several commenters noted that organizations

other than the Board of Certified Safety Professionals certify safety

professionals, such as the World Safety Organization or the Federal

Railroad Administration. Others recommended that the rule recognize

experience equivalent to the training required by the Board of Safety

Professionals. One commenter recommended that, in addition to

certification, a Certified Transit Safety Professional be required to

have a minimum number of years of experience.

Several commenters opposing this proposal maintained that the Board

of Certified Safety Professionals does not certify professionals in

transit safety. The Board of Safety Professionals, however, did not

oppose this proposal. Instead, they recommended that FTA require the

certified transit safety professional's certification to be current.

Several commenters noted that States do not certify professional

engineers in system safety, although one commenter noted that the Board

of Certified Safety Professionals 1993-1994 Directory listed 200 Safety

Professionals certified in system safety.

One commenter who opposed this proposal nevertheless recommended

that FTA require safety professionals to complete FTA's Rail System

Safety Course. Another commenter recommended that a peer group develop

guidelines concerning the experience and training for transit safety

professionals, which a transit agency could adopt. Other commenters

objected to the proposal stating that such a training requirement would

be too expensive.-

FTA Response. In response to the overwhelming comments opposed to

this proposal, FTA has removed the Certified Transit Safety

Professional provision from the rule. We do, however, urge the States

to develop their own criteria to ensure that both the transit and

oversight agencies are using qualified professionals under this rule to

ensure the safe operation of rail fixed guideway systems. In this

regard, we recommend that safety professionals, at a minimum, have

transit safety experience and complete the courses at the

Transportation Safety Institute (TSI) sponsored by FTA applicable to

rail transit systems. TSI offers the following

[[Page 67043]]

courses: System Safety, Accident Investigation, System Security, and

Emergency Management. FTA has provided training assistance to the

transit industry in safety since 1976, and this program will be a major

contribution to State Safety Oversight. Moreover, we urge States to

require safety employees to be certified by the Board of Certified

Safety Professionals, the World Safety Organization, or other

comparable organization; safety professionals should possess a certain

level of experience as well.

III. Section-by-Section Analysis

Please note that issues addressed in the Section-by-Section

Analysis may also be discussed in the Discussion of the Comments.

Subpart A--General Provisions

A. Purpose. (Sec. 659.1)

This section explains that FTA is implementing the requirements of

49 U.S.C. Sec. 5330, which requires a State to establish an agency to

oversee the safety of rail fixed guideway systems. This rule directs

the oversight agency to develop a system safety program standard and to

require the transit agency to develop a system safety program plan that

complies with the system safety program standard. In addition, the

oversight agency must conduct safety reviews and investigations and

ensure that the transit agency has developed and implemented a system

safety program plan that complies with this rule and is effective.

B. Scope. (Sec. 659.3)

This section explains that the rule applies only to States with

rail fixed guideway systems that are not regulated by the FRA.

C. Definitions. (Sec. 659.5)

1. Accident

An accident triggers an investigation by the oversight agency or

its agent, and is defined as an event that occurs when the rail fixed

guideway system is in revenue service and an individual dies or is

injured and immediately receives medical treatment away from the scene;

or a collision, derailment, or fire results in $100,000 in property

damage.

Injuries, deaths, or property damage that occur when the rail fixed

guideway system is not in revenue service are excluded from the

definition. Hence, under the rule, the oversight agency or its agent is

not required to investigate these events, but may do so under its own

authority.

An ``individual'' means anyone, including a passenger, trespasser,

employee, or other bystander.

2. APTA Guidelines

The ``APTA Guidelines'' means the ``Manual for the Development of

Rail Transit System Safety Program Plans'' published by the American

Public Transit Association on August 20, 1991.

3. Contractor

A ``contractor'' means an entity that performs tasks required under

this part on behalf of the oversight or transit agency. A transit

agency may not be a contractor for an oversight agency.

4. FTA

The ``FTA'' means the Federal Transit Administration, an agency of

the United States Department of Transportation.

5. Hazardous Condition

``Hazardous Condition'' means a condition that may endanger human

life or property. It encompasses ``unacceptable hazardous conditions,''

defined below.

6. Investigation

``Investigation'' means the process used to determine the probable

cause of the ``accident'' or ``unacceptable hazardous condition.'' It

includes a review by the oversight agency of the transit agency's

determination of the probable cause of an ``accident'' or

``unacceptable hazardous condition.''

An ``investigation'' may be conducted by the oversight agency

itself or by some other entity acting on its behalf, or the

investigation may be conducted by the transit agency. If the oversight

agency chooses the latter method it must, at a minimum, review and

approve the transit agency's findings of probable cause of the

``accident'' or ``unacceptable hazardous condition.''

7. Oversight Agency

The agency designated by the State or affected States to implement

the requirements of this part.

8. Rail Fixed Guideway System

``Rail fixed guideway system'' means any light, heavy, or rapid

rail system, monorail, inclined plane, funicular, trolley, or automated

guideway that is included in FTA's calculation of fixed guideway route

miles or receives funding under FTA's formula program for urbanized

areas and is not regulated by the Federal Railroad Administration.

9. Safety

``Safety'' means freedom from danger; it includes freedom from

unintentional as well as intentional acts.

10. Safety Review

``Safety review'' means a comprehensive review by the oversight

agency of the transit agency's safety practices. It includes an

analysis by the oversight agency of the efficacy of the transit

agency's system safety program plan and a determination of whether the

system safety program plan must be modified, changed, or updated. The

safety review must be conducted at the rail fixed guideway system.

11. Security

``Security'' means freedom from intentional danger. Intentional

danger includes criminal acts such as muggings, rapes, robberies, or

terrorists acts, such as bombings, releases of poisonous gases, or

kidnappings.

12. System Safety Program Plan

``System safety program plan'' means the written document developed

by the transit agency in accordance with the requirements of the

oversight agency's system safety program standard.

13. System Safety Program Standard

``System safety program standard'' means the document developed by

the oversight agency that complies, at a minimum, with the APTA

Guidelines and requires the rail fixed guideway system to address the

personal security of its passengers and employees. It may contain more

requirements than the APTA Guidelines. The transit agency must comply

with this document when it develops its system safety program plan.

14. Transit Agency

``Transit agency'' means the entity operating the rail fixed

guideway system.

15. Unacceptable Hazardous Condition

An ``unacceptable hazardous condition'' is a particular kind of

hazardous condition determined by using the Hazard Resolution Matrix

contained in the APTA Guidelines at checklist number 7.

D. Withholding of Funds for Non-Compliance. (Sec. 659.7)

This section is taken from section 5330, which authorizes FTA to

withhold Federal funding from a State or an urbanized area in the

State. In particular, FTA is authorized to withhold up to five percent

of an affected urbanized area's apportionment if the State, in the

opinion of FTA, is not in compliance or making adequate efforts to

comply with the rule. The sanctions for non-compliance do not begin

until September 30, 1997. In the event of non-compliance with the rule,

[[Page 67044]]

the Administrator may withhold funds until the State comes into

compliance.

Subpart B--The Role of the State

A. Designation of Oversight Agency. (Sec. 659.21)

This section directs the State to select an agency to oversee the

rail fixed guideway system and prohibits the State from selecting the

transit agency to perform this role. Paragraph (a) concerns rail fixed

guideway systems that operate within only one State. In these

instances, the State must designate a State agency to implement the

rule. If the State chooses, this paragraph allows the State to

designate an oversight agency for each rail fixed guideway system

within the State. For instance, a State may wish to designate one

agency for an historical trolley system and another for the remaining

systems within the State. The rule is flexible in this regard and is

written to accommodate those States that have established an oversight

program under State law.

For those States that have not established an oversight program and

have more than one rail fixed guideway system within the State, we

recommend that the State designate only one agency to implement the

rule. This would save resources and ensure the consistent application

of the rule.

Paragraph (b) is directed to States that jointly operate a multi-

State rail fixed guideway system. Although we recommend that the

affected States designate a single oversight agency, this paragraph

allows them to designate more than one agency, other than the transit

agency, to implement the rule. Moreover, this paragraph recognizes that

a single oversight agency designated by the affected States will not be

an agency of any particular State.

B. Confidential Accident Reports. (Sec. 659.23)

This section permits the State to require the oversight agency to

keep investigation reports confidential in civil litigation.

Subpart C--The Oversight Agency's Role

A. The System Safety Program Standard. (Sec. 659.31)

This section directs the oversight agency to develop a system

safety program standard that complies, at a minimum, with the American

Public Transit Association's ``Manual for the Development of Rail

Transit System Safety Program Plans'' (APTA Guidelines) available from

the American Public Transit Association, 1201 New York Avenue, N.W.,

Washington, D.C. 20005-3917 or Office of Safety and Security, Federal

Transit Administration, 400 Seventh Street, S.W., Washington, D.C.

20590, and requires the transit agency to address the personal security

of its passengers and employees.

As discussed above, because the APTA Guidelines were derived from

MIL-STD 882B, we believe that existing oversight agencies that have

used MIL-STD 882B or its successor MIL-STD 882C to create their

oversight programs should meet, if not exceed, the APTA Guidelines,

although we recommend that these existing oversight agencies review

their programs in this regard.

This section further directs the oversight agency to develop a

standard that would require the transit agency to address the personal

security of its passengers and employees. In this regard, FTA has

neither developed specifications nor adopted a standard for the

oversight agency to follow. Instead, we have published, independently,

two ``how to'' documents to be used by both the oversight and transit

agencies in developing security standards and procedures. These

documents, ``Transit Security Procedures Guide'' and ``Transit System

Security Program Planning Guide,'' are available free of charge from

the Office of Safety and Security, Federal Transit Administration, at

the address noted above. Although the use of these documents is not

mandated under the rule, we recommend strongly that every affected

State and transit agency obtain copies and review them. As noted above,

FTA also offers several courses on security through TSI. Moreover, we

suggest that the oversight agency require the transit agency to address

such criminal acts as terrorist activities and ``street crime'' such as

muggings, rapes, drug dealings, etc.

This section also allows the oversight agency to create a program

that is more stringent than that required under the APTA Guidelines,

although we urge those agencies not to adopt FRA-type regulations.

B. System Safety Program Plans. (Sec. 659.33)

This section establishes January 1, 1997, as the deadline for the

implementation of the system safety program plan and requires the

oversight agency to have initially reviewed and approved it before that

date. It further establishes January 1, 1998, as the implementation

date for the security provisions of the system safety program plan. It

also requires the oversight agency to direct the transit agency to

update the system safety program plan as necessary. The oversight

agency may decide that it is necessary for a system safety program plan

to be updated at certain intervals, or it may make a determination

based on accident statistics or results from safety audits or reviews,

for example. Should the oversight agency make such a determination,

this section directs it to again review and approve the transit

agency's updated system safety program plan.

This section allows the oversight agency to determine whether the

security provisions of the system safety program plan should be

publicly available. FTA recommends strongly that the oversight agency

prohibit the transit agency from publicly disclosing the security

portions of the system safety program plan under any circumstance.

C. Transit Agency Annual Audit Reports. (Sec. 659.35)

Checklist number 9 of the APTA Guidelines requires the transit

agency to draft a report summarizing the findings of its internal

safety audit. This section of the rule requires the annual submission

of that report to the oversight agency for its review.

D. Safety Reviews. (Sec. 659.37)

At least every three years, the oversight agency must conduct an

on-site safety review of the transit agency's implementation of its

system safety program plan. After this review has been completed, the

oversight agency must issue a report detailing its findings and

recommendations, its analysis of the system safety program plan, and

its determination whether the safety program plan should be updated or

changed.

E. Transit Agency Report on Accidents and Unacceptable Hazardous

Conditions. (Sec. 659.39)

To investigate ``accidents'' and ``unacceptable hazardous

conditions'' as required by section 5330, the oversight agency must

know about them. This section directs the oversight agency to require

the transit agency to report ``accidents'' and ``unacceptable hazardous

conditions'' within the time specified by the oversight agency.

F. Investigations. (Sec. 659.41)

As discussed above in the Discussion of the Comments, the oversight

agency is not required to conduct the investigation itself, but may do

so through another entity such as a

[[Page 67045]]

contractor or even the transit agency. The oversight agency, however,

must decide how it is going to conduct an investigation and establish

the procedures it or the entity acting on its behalf will use.

There are numerous ways the oversight agency may comply with this

requirement. For instance, the oversight agency may establish one set

of procedures to investigate accidents and another to investigate

unacceptable hazardous conditions. The oversight agency may use a

contractor, such as the APTA Panel of Inquiry, to investigate certain

kinds of accidents and its own staff to investigate others.

The rule is intentionally flexible to allow the oversight agency to

adapt an oversight program to the needs of the rail fixed guideway

systems within the State's jurisdiction.

G. Corrective Actions. (Sec. 659.43)

Section 659.41 requires the oversight agency to investigate

``unacceptable hazardous conditions.'' This section directs the

oversight agency to require the transit agency to develop a corrective

action plan to eliminate, minimize, or control investigated hazardous

conditions in accordance with the approved corrective action plan and

within the time period specified by the oversight agency.

H. Oversight Agency Report to the Federal Transit Administration.

(Sec. 659.45)

This section requires three kinds of reports: initial, annual, and

periodic. The initial submission contains information that will not

change frequently, such as the name and address of the oversight agency

and the transit agencies it oversees, a copy of the system safety

program standard, and a description of the oversight agency's

procedures for conducting investigations and ensuring that the transit

agency has undertaken appropriate corrective actions. This report must

be updated only when some of the information within it changes.

The annual submission describes the activities of the oversight

agency for the previous twelve months, including any determinations by

the oversight agency of the probable cause of ``accidents'' and

``unacceptable hazardous conditions,'' if it can do so and protect the

confidentiality of investigation reports. This section allows an

oversight agency required to submit annual reports to the State to

submit the same report to FTA, if it contains all the necessary

information.

Last, this section allows FTA to periodically ask the oversight

agency to submit certain kinds of information such as the status

reports on ``accidents,'' ``hazardous conditions,'' and corrective

action plans. These reports must be submitted only upon FTA's request.

I. Use of Contractors. (Sec. 659.47)

This section expressly allows the oversight or transit agency to

use contractors to perform certain tasks required under the rule. The

agencies may use a contractor to perform some or all of these tasks.

For instance, an oversight agency may use a contractor to conduct only

accident investigations, while another may use a contractor solely to

conduct safety reviews. A transit agency may not be a contractor for

the oversight agency, however.

J. Certification of Compliance. (Sec. 659.49)

This section requires the oversight agency to initially certify

before January 1, 1997, that it has complied with the rule. Thereafter,

the oversight agency is required to certify annually that it is in

compliance with the rule.

IV. Economic Analysis

FTA has evaluated the industry-wide costs and benefits of the rule,

``Rail Fixed Guideway Systems; State Safety Oversight,'' which requires

a State to develop, through an oversight agency, a program to oversee

the safety of rail fixed guideway systems. At least 19 States will be

required to create an oversight agency that must:

Develop a System Safety Program Standard which includes

provisions addressing security.

Approve the transit agency's initial system safety program

plan.

Conduct safety reviews.

Establish investigation procedures.

Investigate accidents and unacceptable hazardous

conditions.

Ensure the transit agency complies with the oversight

agency's system safety program standard.

Review corrective action plans.

Report to FTA.

At least 33 transit agencies must:

Develop a System Safety Program Plan and update it, as

necessary.

Prepare annual audit reports.

Conduct safety audits.

Classify hazardous conditions according to the APTA Hazard

Resolution Matrix.

Report accidents and unacceptable hazardous conditions to

the oversight agency.

Prepare corrective action plans.

Handle hazardous conditions according to approved

corrective action plans.

Maintain safety data.

Generally, in analyzing the costs of this rule, the Regulatory

Evaluation considered only those activities required by the rule. For

those States and transit agencies that have already established a

program similar to the one required by the rule, the Regulatory

Evaluation considered only those activities necessary to bring these

programs into compliance with the rule. Year One costs are estimated to

be approximately $336,000, the lowest for any single year. This is

because the costs incurred in Year One are generally limited to

activities of the oversight agencies and the FTA. Total costs for the

first ten years are estimated to be approximately $9.1 million.

The estimated benefits of the rule are assumed to take full effect

in the third year of implementation, 1998. Therefore, the estimated

fatalities and injuries averted are based on an eight-year period. For

this period there would be 16 fatalities and 1,528 injuries averted.

Based on the Department's Willingness to Pay Threshold, the total

benefit of the rule is approximately $107 million over a ten-year

period.

V. Regulatory Process Matters

A. Executive Order 12866

FTA has evaluated the costs and benefits to the States of creating

an oversight program to oversee the safety of rail fixed guideway

systems and has determined that this rule is a major rule under

Executive Order 12866 because it affects State and local governments.

B. Departmental Significance

This proposed rule is a ``significant regulation'' under the

Department's Regulatory Policies and Procedures, because it changes an

important Departmental policy. That policy change requires the States

to oversee the safety of rail fixed guideway systems, something the

Federal government has never before required.

C. Regulatory Flexibility Act

In accordance with 5 U.S.C. 603(a), FTA has evaluated the effects

of this proposed rule on small entities. Based on this evaluation, FTA

hereby certifies that this action will not have a significant economic

impact on a substantial number of small entities because the affected

transit agencies will in most cases be large.

D. Paperwork Reduction Act

The information collection requirements in this rule have been

reviewed and approved by the Office of Management and Budget under OMB

#2132-0558.

[[Page 67046]]

E. Executive Order 12612

We have reviewed this rule under the requirements of Executive

order 12612 on Federalism. FTA has determined that since this rule has

significant Federalism implications it warrants a Federalism

assessment. We note, however, that this rulemaking is mandated by 49

U.S.C. 5330, which requires a State to create an oversight agency to

oversee the safety of rail fixed guideway systems.

In considering the Federalism implications of the proposed rule,

FTA has focused on several key provisions of Executive order 12612.

Necessity for action. This rule is mandated by law, which requires

that rail fixed guideway systems be subject to State oversight.

Approximately twenty-one States have rail fixed guideway systems

operating within their jurisdictions. Of those, only five States have

established a State oversight program.

Consultation with State and local governments. FTA's mission is to

provide financial assistance to mass transportation systems throughout

the nation, thus providing grants to State and local governments.

Because this rule will affect almost half of the States as well as many

local governments, we published an ANPRM on June 25, 1992, at 57 FR

28572, to solicit the views of State and local governments. In

addition, we held three public hearings in conjunction with the ANPRM.

Also, FTA published an NPRM on December 9, 1993, at 58 FR 64855, on

which numerous State and local governmental agencies commented.

Moreover, we held a public hearing on the NPRM on March 8, 1994, in

conjunction with an American Public Transit Association conference,

thus allowing more State and local agencies to participate in the

development of this rule. In short, we actively sought the views and

comments of the affected States.

Need for Federal action. This rule responds to a Congressional

mandate but is designed to give a State maximum flexibility in

designing its own oversight program.

Authority. The statutory authority for this rule is discussed

elsewhere in this preamble.

Pre-emption. This rule does not, as such, pre-empt State or local

law. There may be instances in which a State or local agency faces a

conflict between compliance with the rule and State and local

requirements. Because compliance with the rule is a condition of

Federal financial assistance, State and local governments have the

option of not seeking the Federal funds if they choose not to comply

with this rule.

F. National Environmental Policy Act

FTA has determined that this rule has no environmental

implications. Its purpose is to create a State oversight program

designed to oversee the safety of rail fixed guideway systems.

G. Energy Impact Implications

This regulation does not affect the use of energy because it

creates a State oversight program designed to oversee the safety of

rail fixed guideway systems.

List of Subjects in 49 CFR Part 659

Grant programs--transportation, Incorporation by reference, Mass

transportation, Reporting and recordkeeping requirements, Safety,

Security, and Transportation.

Accordingly, for the reasons cited above, the agency amends title

49 of the Code of Federal Regulations by adding a new part 659, to read

as follows:

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

Subpart A--General Provisions

Sec.

659.1 Purpose.

659.3 Scope.

659.5 Definitions.

659.7 Withholding of funds for non-compliance.

Subpart B--The Role of the State

659.21 Designation of oversight agency.

659.23 Confidential investigation reports.

Subpart C--The Oversight Agency's Role

659.31 The system safety program standard.

659.33 System safety program plans.

659.35 Transit agency annual audit reports.

659.37 Safety reviews.

659.39 Transit agency report on accidents and unacceptable

hazardous conditions.

659.41 Investigations.

659.43 Corrective actions.

659.45 Oversight agency report to the Federal Transit

Administration.

659.47 Use of contractors.

659.49 Certification of compliance.

Appendix to Part 659--Sample Certification of Compliance.

Authority: 49 U.S.C. Sec. 5330.

Subpart A--General Provisions

Sec. 659.1 Purpose.

This part implements 49 U.S.C. 5330 by requiring a State to oversee

the safety of rail fixed guideway systems through a designated

oversight agency.

Sec. 659.3 Scope.

This part applies to a State that has within its boundaries a rail

fixed guideway system not regulated by the Federal Railroad

Administration (FRA).

Sec. 659.5 Definitions.

As used in this part--

Accident means any event involving the revenue service operation of

a rail fixed guideway system if as a result:

(1) An individual dies;

(2) An individual suffers bodily injury and immediately receives

medical treatment away from the scene of the accident; or

(3) A collision, derailment, or fire causes property damage in

excess of $100,000.

APTA Guidelines means the American Public Transit Association's

``Manual for the Development of Rail Transit System Safety Program

Plans,'' published on August 20, 1991.

Contractor means an entity that performs tasks required by this

part on behalf of the oversight or transit agency. The transit agency

may not be a contractor for the oversight agency.

FTA means the Federal Transit Administration, an agency within the

U.S. Department of Transportation.

Hazardous condition means a condition that may endanger human life

or property. It includes unacceptable hazardous conditions.

Investigation means a process to determine the probable cause of an

accident or an unacceptable hazardous condition; it may involve no more

than a review and approval of the transit agency's determination of the

probable cause of an accident or unacceptable hazardous condition.

Oversight agency means the entity, other than the transit agency,

designated by the State or several States to implement this part.

Rail fixed guideway system means any light, heavy, or rapid rail

system, monorail, inclined plane, funicular, trolley, or automated

guideway that is:

(1) Included in FTA's calculation of fixed guideway route miles or

receives funding under FTA's formula program for urbanized areas (49

U.S.C. 5336); and

(2) Not regulated by the Federal Railroad Administration.

Safety means freedom from danger.

Safety review means a formal, comprehensive, on-site examination by

the oversight agency of a transit agency's safety practices to

determine whether they comply with the policies and procedures required

under the transit agency's system safety program plan.

Security means freedom from intentional danger.

System safety program plan means a document adopted by the transit

agency

[[Page 67047]]

detailing its safety policies, objectives, responsibilities, and

procedures.

System safety program standard means the standard developed and

adopted by the State oversight agency which, at a minimum, complies

with the APTA Guidelines and which addresses personal security.

Transit agency means an entity operating a rail fixed guideway

system.

Unacceptable hazardous condition means a hazardous condition

determined to be an unacceptable hazardous condition using the APTA

Guidelines' Hazard Resolution Matrix (APTA Guidelines, checklist number

7).

Sec. 659.7 Withholding of funds for non-compliance.

The Administrator of the FTA may withhold up to five percent of the

amount required to be apportioned for use in any State or affected

urbanized area in such State under FTA's formula program for urbanized

areas for any fiscal year beginning after September 30, 1997, if the

State in the previous fiscal year has not met the requirements of this

part and the Administrator determines that the State is not making

adequate efforts to comply with this part.

Subpart B--The Role of the State

Sec. 659.21 Designation of oversight agency.

(a) For a transit agency or agencies operating within a single

State, the State must designate an agency of the State, other than a

transit agency, to serve as the oversight agency and to implement the

requirements of this part.

(b) For a transit agency operating a system within more than one

State, those States may designate a single entity, other than the

transit agency, to implement the requirements of this part.

Sec. 659.23 Confidential investigation reports.

The State may prohibit an investigation report that may be prepared

by the oversight agency from being admitted into evidence or used in a

civil action for damages resulting from a matter mentioned in the

report.

Subpart C--The Oversight Agency's Role

Sec. 659.31 The system safety program standard.

(a) The oversight agency must develop and adopt a system safety

program standard that, at a minimum--

(1) Complies with the American Public Transit Association's

``Manual for the Development of Rail Transit System Safety Program

Plans'' (APTA Guidelines) published on August 20, 1991, hereby

incorporated by reference; and

(2) Requires the transit agency to address the personal security of

its passengers and employees.

(b) The APTA Guidelines specify procedures for developing a system

safety program plan, generally discuss the principles of system safety,

and specifically address certain issues critical to the safe operation

of a rail fixed guideway system.

(c) The incorporation by reference of the APTA Guidelines has been

approved by the Director of the Federal Register in accordance with 5

U.S.C. 552(a) and 1 CFR Part 51. Copies of the APTA Guidelines may be

obtained from the American Public Transit Association, 1201 New York

Avenue, N.W., Washington D.C. 20005-3917, (202) 893-4000. The

Guidelines may be inspected at, and are available from the Federal

Transit Administration, Office of Safety and Security, 400 7th Street,

S.W., Washington, D.C. 20590, and at the Office of the Federal

Register, 800 North Capitol Street, N.W., Washington, D.C.

Sec. 659.33 System safety program plans.

(a) Except as provided in Sec. 659.33(b), the oversight agency must

require the transit agency to--

(1) Implement, beginning on January 1, 1997, a system safety

program plan conforming to the oversight agency's system safety program

standard; and

(2) Approve in writing before January 1, 1997, the transit agency's

system safety program plan.-

(b) The oversight agency must require the transit agency to--

(1) Implement, beginning on January 1, 1998, the security portions

of its system safety program plan; and

(2) Approve in writing before January 1, 1998, the security

portions of the transit agency's system safety program plan.

(c) After December 31, 1996, the oversight agency must review and

approve, in writing, the transit agency's system safety program plan,

as necessary, and require the transit agency to update its system

safety program plan, as necessary.

(d) The oversight agency may prohibit a transit agency from

publicly disclosing the security aspects of the system safety program

plan.

Sec. 659.35 Transit agency annual audit reports.

The oversight agency must--

(a) Require that the transit agency submit, annually, a copy of the

annual safety audit report prepared by the transit agency as a result

of the Internal Safety Audit Process (APTA Guidelines, checklist number

9); and

(b) Review the annual safety audit reports prepared by the transit

agency.

Sec. 659.37 Safety reviews.

At least every three years the oversight agency must conduct an on-

site safety review of the transit agency's implementation of its system

safety program plan and prepare and issue a report containing findings

and recommendations resulting from that review, which, at a minimum,

must include an analysis of the efficacy of the system safety program

plan and a determination of whether it should be updated.

Sec. 659.39 Transit agency report on accidents and unacceptable

hazardous conditions.

The oversight agency must require that the transit agency report

accidents and unacceptable hazardous conditions to the oversight agency

within a specified period of time.-

Sec. 659.41 Investigations.

The oversight agency must--

(a) Establish procedures to investigate accidents and unacceptable

hazardous conditions.

(b) Unless the National Transportation Safety Board has

investigated or will investigate an accident, the oversight agency must

investigate accidents and unacceptable hazardous conditions occurring

at a transit agency under its jurisdiction.

Sec. 659.43 Corrective actions.

The oversight agency must require the transit agency to minimize,

control, correct, or eliminate any investigated hazardous condition

within a time period specified by and in accordance with a corrective

action plan approved by the oversight agency.

Sec. 659.45 Oversight agency report to the Federal Transit

Administration. -

(a) Initial submissions. Before January 1, 1997, the oversight

agency must submit to FTA the following information, which must be

updated as necessary: -

(1) The name and address of the oversight agency; -

(2) The name(s) and address(es) of the transit agency or agencies

subject to the oversight agency's jurisdiction under this part; and -

(3) A written description of the oversight agency's oversight

program including the following information: -

(i) A copy of its system safety program standard; -

(ii) Its procedures or process for reviewing and approving the

transit agency's system safety program plan; -

[[Page 67048]]

(iii) Its investigatory procedures; and -

(iv) Its procedures for ensuring that appropriate corrective

actions have been taken by the transit agency to correct, eliminate,

minimize, or control investigated hazardous conditions. -

(b) Annual submissions. Before January 1 of each year, the

oversight agency must submit to FTA a publicly available annual report

summarizing its oversight activities for the preceding twelve months,

including a description of the most common probable causal factors of

accidents and unacceptable hazardous conditions. -

(c) Periodic submissions. Status reports of accidents, hazardous

conditions, and corrective action plans must be forwarded to the FTA

upon request. -

(d) Addresses. Reports and annual summaries must be sent to:

Federal Transit Administration, Office of Safety and Security, 400 7th

Street, S.W., Washington, D.C. 20590.

Sec. 659.47 Use of contractors. -

(a) The oversight agency may use a contractor to---

(1) Develop a system safety program standard; -

(2) Review system safety program plans; -

(3) Review annual audit reports; -

(4) Conduct safety reviews; -

(5) Prepare safety review findings; -

(6) Establish investigation procedures; -

(7) Conduct investigations; -

(8) Review corrective action plans; and/or -

(9) Prepare initial or annual submissions to FTA. -

(b) The oversight agency may allow a transit agency to use a

contractor to---

(1) Develop or update a system safety program plan; -

(2) Prepare annual audit reports; and/or -

(3) Develop a corrective action plan.

Sec. 659.49 Certification of compliance. -

(a) Before January 1, 1997, and annually thereafter, the oversight

agency must certify to the FTA that it has complied with the

requirements of this part. Each certification shall comply with the

applicable sample certification provided in the appendix to this part.

Each certification shall be sent to: Federal Transit Administration,

Office of Safety and Security, 400 7th Street, S.W., Washington, D.C.

20590. -

(b) Each certification must be signed by an official authorized by

the oversight agency and must comply with the applicable sample

certification provided in the appendix to this part.

Appendix to Part 659--Sample Certification of Compliance -

This appendix contains an example of certification language. - -

I, (name), (title), certify that (name of the oversight agency)

has implemented a State oversight program that meets the

requirements of 49 CFR part 659 and further certify that I have no

conflict of interest with any rail fixed guideway system overseen as

a result of 49 CFR part 659, nor does (name of the oversight agency)

and its contractors.

Issued: December 18, 1995. ----- ------ ------

Gordon J. Linton,

Administrator.

[FR Doc. 95-31159 Filed 12-26-95; 8:45 am]

BILLING CODE 4910-57-U