Rail Fixed Guideway Systems; State Safety Oversight, 22562-22583 [05-8567]

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

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



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Part IV





Department of Transportation





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Federal Transit Administration



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49 CFR Part 659



Rail Fixed Guideway Systems; State Safety Oversight; Final Rule

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

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 659

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


Rail Fixed Guideway Systems; State Safety Oversight

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION:

Availability of the Final Rule

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

Outline of Preamble

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

I. Background

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

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

II. Purpose

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

III. Rulemaking Overview/Summary of Rule Changes

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

The State

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

The Oversight Agency

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

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

Rail Transit Agency

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

Federal Transit Administration

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

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IV. Overview of the Comments

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


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

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

V. Section by Section Discussion of the Comments

General Comments

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

Definitions

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

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

Withholding of Funds for Noncompliance

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

Designation of Oversight Agency

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

Confidentiality of Investigation Reports and Security Plans

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

Oversight Agency Program Standard

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

[[Page 22567]]

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

System Safety Program Plan

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

System Security Plan

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

[[Page 22568]]

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

Rail Transit Agency Review of its System Safety Program Plan

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

Rail Transit Agency Internal Safety and Security Reviews

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

Oversight Agency Safety and Security Reviews

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

[[Page 22569]]

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

Hazard Management Process

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

Accident Notification and Investigation

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

[[Page 22570]]

commenters recommended that FTA also make a distinction between FTA-
reportable (those meeting the fatality, injury, and property damage 
thresholds for notification) and non-reportable (namely, the evacuation 
and main-line derailment thresholds), to ensure that the non-reportable 
incidents are still logged, reviewed and tracked for possible 
identification of trends and patterns.
    Additionally, the NPRM proposed, ``(b) The oversight agency must 
use approved investigation procedures that have been submitted to FTA 
as required in the initial submission or annual submission'' and ``(c) 
In the event the oversight agency designates the rail transit agency to 
conduct investigations on its behalf, it must do so formally and 
require the rail transit agency to use investigation procedures that 
have been formally approved by the oversight agency.''
    Some commenters recommended that the required investigation process 
for the analysis of probable or multiple causal determinations be 
standardized across the industry. Another commenter recommended that 
the state oversight agency's procedures include the rail transit 
agency's own investigation of the accident.
    The NPRM proposed, ``(d) Each investigation must be documented in a 
final report that includes a description of investigation activities, 
identified causal factors, and a corrective action plan. (1) The final 
investigation report must be submitted to the oversight agency in a 
format and timeframe specified by the oversight agency. (2) The 
oversight agency must review and formally approve each final 
investigation report. (3) The oversight agency shall have the authority 
to require periodic status reports that document investigation 
activities and findings in a time frame determined by the oversight 
agency.''
    One commenter objected to the requirement for the state oversight 
agency to approve the rail transit agency investigation report, 
indicating that the investigating party must be given autonomy for 
findings in the final report and that any state comments should be made 
during the drafting phase. Another commenter suggested that the 
proposed rule for accident investigations relied on transparency 
between the agencies and that the rail transit agencies must release, 
or make available, all essential information to the state oversight 
agency in order for the state to adequately review the determination of 
cause(s).
    Finally, one commenter recommended that FTA require sending the 
final investigation report to the rail transit agency's executive 
director or general manager.
    FTA Response. In light of the comments submitted relating to the 
accident notification and investigation sections of the rule, FTA has 
made changes to these requirements. For instance, we will require the 
rail transit agency to notify an oversight agency of all fatalities, 
and will not exclude suicides from the notification process. We agree 
with those commenters who suggested that the cause of death might not 
be readily apparent and that it should not be the role of the rail 
transit agency or state oversight agency to make that determination. In 
addition, suicides on urban rail systems are a visible problem and the 
oversight agency should be notified when they occur. Safety issues may 
be involved in these incidents, and corrective actions could 
potentially prevent additional suicides.
    In reference to the notification threshold for a fatality, FTA 
disagrees with the commenters who noted that it might be difficult to 
track the status of an individual for thirty (30) days to determine 
whether or not the individual has been confirmed dead, thus requiring 
notification of the state oversight agency and compliance with 
subsequent investigation and corrective action plan requirements. 
Furthermore, FTA believes that the rail transit agency's 
representative(s) responsible for risk management, legal duties, or 
claims will either be notified of the confirmed death or will track 
status information. In addition, rail transit agencies must currently 
track this information for NTD reporting. For these reasons we did not 
revise the 30-day tracking period.
    FTA agrees with commenters indicating that noteworthy incidents, 
such as a collision between a train and a person would go unreported 
under the notification threshold for two (2) or more injuries in the 
NPRM. Furthermore, we agree that there are still discrepancies between 
notification and investigation thresholds in the NPRM and those of the 
data reporting thresholds for ``major events'' within the NTD Program 
and notification thresholds f