Reports and guidance documents; availability, etc.: FTA-funded major capital projects; safety and security management plan, 34339-34348 [E7-11970]

Agencies

• Federal Transit Administration

[Federal Register: June 21, 2007 (Volume 72, Number 119)]
[Notices]
[Page 34339-34348]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn07-80]

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No: FTA-2006-25471]


Safety and Security Management for Major Capital Projects: Notice
of Final Circular

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of Availability of Final Circular.

-----------------------------------------------------------------------

SUMMARY: The Federal Transit Administration (FTA) has placed in the
docket and on its Web site final guidance in the form of a circular to
address safety and security management in capital projects covered
under 49 CFR part 633, ``Project Management Oversight.'' FTA requires a
Project Management Plan (PMP) for major capital projects as defined in
49 CFR 633. In the final circular, FTA requires recipients with
projects covered under 49 CFR 633 to develop a Safety and Security
Management Plan (SSMP), as a chapter or plan within the PMP. In this
notice, FTA provides a summary of the final circular and addresses
comments received in response to the October 11, 2006 Federal Register
Notice (71 FR 43280).
    As defined in 49 CFR 633.5, the term ``major capital project''
means a project that ``(1) involves the construction of a new fixed
guideway or extension of an existing fixed guideway or (2) involves the
rehabilitation or modernization of an existing fixed guideway with a
total project cost in excess of $100 million.'' The Administrator may
also designate a major capital project in circumstances where he or she
determines that FTA's project management oversight (PMO) program ``will
benefit specifically the agency or the recipient.'' Typically, this
means ``a project that: (i) Generally is expected to have a total
project cost in excess of $100 million or more to construct; (ii) is
not exclusively for the routine acquisition, maintenance, or
rehabilitation of vehicles or other rolling stock; (iii) involves new
technology; (iv) is of a unique nature for the recipient; or (v)
involves a recipient whose past experience indicates to the agency the
appropriateness of the extension of this program.'' Major capital
projects typically do not include projects

[[Page 34340]]

receiving capital investment grants under 49 U.S.C. 5309(e), more
commonly referred to as ``Small Starts'' and ``Very Small Starts''
projects, unless FTA's Administrator determines that a PMP is
necessary.

DATES: The effective date of this circular is August 1, 2007.
    Availability of the Final Circular: You may download the circular
from the Department's Docket Management System (https://dms.dot.gov) by

entering docket number 25471 in the search field. You may also download
an electronic copy of the circular from FTA's Web site, at https://www.fta.dot.gov.
 Paper copies of the circular may be obtained by

calling FTA's Administrative Services Help Desk, at 202-366-4865.

FOR FURTHER INFORMATION CONTACT: For issues regarding safety and
security in FTA's project development phases, please contact Carlos M.
Garay, Office of Engineering, Federal Transit Administration, 1200 New
Jersey Avenue, SE., Washington, DC 20590, phone: 202-366-6471, or e-
mail, carlos.garay@dot.gov . For issues regarding specific safety and
security management activities, please contact Levern McElveen, Office
of Safety and Security, Federal Transit Administration, 1200 New Jersey
Avenue, SE., Washington, DC 20590, phone: 202-366-1651, or e-mail, 
levern.mcelveen@dot.gov. For legal issues, please contact Shauna J.

Coleman, Office of Chief Counsel, Federal Transit Administration, 1200
New Jersey Avenue, SE, 5th Floor East Building, Washington, DC 20590,
phone: 202-366-4063, fax: 202-366-3809, or e-mail, 
shauna.coleman@dot.gov.


SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Why Did FTA Develop the Proposed Circular?
III. How Does the Final Circular Differ From the Proposed Circular?
IV. How Did FTA Involve the Public in the Circular Revision?
    A. General Comments and Questions
    1. Applicability of Circular to Major Capital Projects
    2. Relationship of Circular to Other SAFETEA-LU Provisions
    3. Coordination With Existing Safety and Security Requirements
    4. FRA Approval of the SSMP
    5. Confusion Regarding How the SSMP Can Be Part of the PMP
    6. SSMP Requirement for Mature Transit Agencies
    7. Applicability of SSMP Sections to All Projects
    8. Impact of Addressing Safety and Security Earlier
    9. The Circular's Financial and Administrative Burden
    B. Section-by-Section Discussion
    1. Chapter I--Introduction and Background
    2. Chapter II--Authority, Activities, FTA Evaluation Criteria,
and Protection of Sensitive Security Information
    3. Chapter III--Process for Preparing the SSMP
    4. Chapter IV--Required SSMP Contents

I. Background

    On October 11, 2006, FTA published its notice of proposed circular,
``Safety and Security Management for Major Capital Projects'' in the
Federal Register. This notice contained a link to the proposed circular
FTA developed to implement Section 3026 of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU), [Pub. L. 109-59, August 10, 2005], which amended 49
U.S.C. 5327. This circular proposed to extend existing FTA requirements
for SSMPs, in Chapter II, Section 6, Safety and Security Management
Plan, of FTA's Full Funding Grant Agreement (FFGA) Guidance Circular
5200.1A to all major capital projects covered under 49 CFR part 633.
    In the notice, FTA asked the public to comment on specific safety
and security management requirements that FTA included in the proposed
circular. FTA also asked the public to provide comments regarding the
potential impacts of the proposed circular on recipients with projects
covered by 49 CFR part 633. FTA provided a 60-day comment period, which
closed December 11, 2006.
    FTA received 13 comments on the notice and proposed circular from
six transit agencies, four industry associations, two individuals, and
one State department of transportation (State DOT). FTA reviewed and
considered all comments submitted. Based upon comments, FTA revised the
proposed circular. In addition, FTA also edited the proposed circular
for clarity and accuracy.
    FTA hereby announces issuance of the final circular, FTA Circular
5800.1, ``Safety and Security Management for Major Capital Projects.''
This notice does not contain the final circular, but it provides a
summary of the provisions found within the circular, and explains how
FTA responded to comments.
    You may find an electronic version of the final circular on the
docket at https://dms.dot.gov , by entering docket number 25471 in the search field, or on FTA's Web site at https://www.fta.dot.gov. You may

obtain paper copies of the final circular by contacting FTA's
Administrative Services Help Desk, at 202-366-4865.

II. Why Did FTA Develop the Proposed Circular?

    FTA developed the proposed circular to implement Section 3026 of
SAFETEA-LU, which amended 49 U.S.C. 5327. This section requires
recipients with major capital projects covered by 49 CFR part 633 to
include ``safety and security management'' as an element of their PMP.
FTA also developed the proposed circular to provide additional guidance
for recipients in addressing safety and security issues during the
project development process.
    When developing the circular, FTA reviewed its past experience
regarding how recipients addressed safety and security issues in their
PMPs. FTA determined that recipients typically described safety and
security management strategies and controls as sub-elements of other
required PMP Sections. FTA also determined that recipients performed
different types of activities to address safety and security. Some
recipients elected to perform safety and security certification or pre-
revenue operational readiness assessments, while other recipients did
not. FTA also determined that recipients did not implement consistent
approaches to safety and security management.
    In the notice of the proposed circular, FTA describes in detail the
information FTA reviewed and considered in developing the proposed
circular. Specifically, FTA explains how the following three factors
guided its development of the proposed circular:
    (1) FTA reviewed the results of its previous experience
implementing the requirements specified in Chapter II, Section 6,
Safety and Security Management Plan of FTA's FFGA Guidance Circular
5200.1A.
    (2) FTA also reviewed safety and security guidance issued since
2002 by FTA, the Transit Cooperative Research Program (TCRP), the
American Public Transportation Association (APTA) Rail Transit
Standards Program, the Federal Highway Administration (FHWA), the
Federal Railroad Administration (FRA), and Operation Lifesaver.
    (3) Finally, FTA reviewed new Federal security requirements and
programs developed by the Department of Homeland Security (DHS), the
Transportation Security Administration (TSA), and the DHS Office of
Grants and Training (OGT).

[[Page 34341]]

III. How Does the Final Circular Differ From the Proposed Circular?

    While FTA retained much of the content of the proposed circular,
FTA is incorporating the following changes into the final circular in
response to comments received on the proposed circular:
     FTA is revising definitions in response to comments
requesting consistency with 49 CFR part 659, ``Rail Fixed Guideway
Systems; State Safety Oversight.'' Specifically, FTA is revising the
definitions for ``Contractor,'' ``Hazard,'' ``Passenger,'' ``Safety,''
``Security,'' ``System Safety Program Plan,'' and ``System Security
Plan'' to make them more consistent with the definitions in 49 CFR
659.5. FTA also revised the final circular to use, more consistently,
terminology that is used in existing FTA or U.S. Department of
Transportation (DOT) directives.
     To enhance consistency with 49 CFR part 633, FTA is using
the term ``recipient,'' as opposed to ``grantee,'' throughout the final
circular.
     In the interest of State DOTs that may be serving as pass-
through agencies for Federal funds, FTA is clarifying that the
``recipient'' responsible for preparing the PMP is also the
``recipient'' responsible for developing the SSMP.
     To address commenter questions regarding the applicability
of the proposed circular to different types of projects covered under
49 CFR part 633 during different project phases, FTA explains that the
SSMP requirements specified in the final circular will not be applied
to major capital projects with approved PMPs in place--as of August 1,
2007--with one exception. FTA will apply the SSMP requirements in this
final circular to major capital projects involving the construction of
a new fixed guideway or extension of an existing fixed guideway--in
preliminary engineering or earlier phases--as of August 1, 2007. FTA
will also apply the SSMP requirements in the final circular to all
major capital projects initiated after August 1, 2007. For the specific
types of major capital projects, as defined in 49 CFR 633.5, FTA
clarifies the applicability of the SSMP requirements in the final
circular as follows:
    [cir] Recipients with major capital projects involving the
rehabilitation or modernization of an existing fixed guideway with a
total project cost in excess of $100 million with approved PMPs in
place--as of August 1, 2007--are exempt from the requirement to develop
an SSMP. However, for these projects, FTA reiterates its commitment to
work with the appropriate State oversight agencies and FRA to ensure
that these recipients are addressing existing provisions for safety and
security certification specified in their System Safety Program Plans
(SSPPs) and System Security Plans.
    [cir] Recipients with major capital projects involving the
rehabilitation or modernization of an existing fixed guideway with a
total project cost in excess of $100 million--initiated after August 1,
2007--are required to develop SSMPs, meeting the terms of this final
circular, as part of their initial PMPs submitted to FTA.
    [cir] Recipients with major capital projects involving the
construction of a new fixed guideway or extension of an existing fixed
guideway--in final design or later phases as August 1, 2007--are exempt
from the requirement to develop an SSMP meeting the terms of this
circular. However, FTA clarifies that these recipients must continue to
comply with the original safety and security management guidance,
provided in Chapter II, Section 6, Safety and Security Management Plan
of FTA's FFGA Circular 5200.1A.
    [cir] Recipients with major capital projects involving the
construction of a new fixed guideway or extension of an existing fixed
guideway--in preliminary engineering or earlier phases as of August 1,
2007--are required to develop SSMPs meeting the terms of this circular,
as part of the PMPs they submit to FTA.
    [cir] Recipients with major capital projects designated by the
Administrator with approved PMPs--as of August 1, 2007--are not
required to develop SSMPs meeting the terms of this circular. However,
where applicable, FTA clarifies that these recipients must continue to
comply with the original safety and security management guidance,
provided in Chapter II, Section 6, Safety and Security Management Plan
of FTA's FFGA Circular 5200.1A.
    [cir] Recipients with major capital projects designated by the
Administrator-initiated after August 1, 2007--are required to develop
SSMPs meeting the terms of this circular, as part of the PMPs they
submit to FTA.
     FTA also clarifies that major capital projects typically
do not include projects receiving capital investment grants under 49
U.S.C. 5309(e), more commonly referred to as ``Small Starts'' and
``Very Small Starts'' projects. Therefore, unless FTA's Administrator
determines that a PMP is necessary, recipients with these projects are
not required to develop SSMPs.
     To address comments regarding the applicability of
specific SSMP Sections to specific projects, FTA is amending Chapter
III, Paragraph 2 of the proposed circular to clarify that, if
recipients have questions regarding the applicability of specific SSMP
Sections to their projects, these recipients must meet with their FTA
Regional Offices and the Project Management Oversight Consultants
(PMOCs) assigned to their projects. During this meeting, recipients
must explain why they believe specific SSMP Sections, as identified in
Chapter IV of the final circular, are not applicable to their projects.
If FTA agrees, then FTA will not require these recipients to address
these sections in their SSMPs.
     Finally, to address requests for additional guidance, FTA
is revising the final circular to include an Appendix Checklist that
provides more information regarding the level of detail recipients must
include in each SSMP Section for different types of projects during
different project development phases.

IV. How Did FTA Involve the Public in the Circular Revision?

    FTA is responding to the 13 comments received on the proposed
circular in the following order: (A) General Comments and Questions and
(B) Section-by-Section Discussion.

A. General Comments and Questions

1. Applicability of Circular to Major Capital Projects
    Eight commenters asked FTA to clarify whether the proposed circular
applied to their projects. Four commenters with major capital projects
involving the rehabilitation or modernization of an existing fixed
guideway with a total project cost in excess of $100 million requested
that FTA exempt their projects from the requirement to develop an SSMP.
These commenters pointed out that their projects had been planned and
budgeted before FTA issued the proposed circular. These commenters felt
that it was unfair for FTA to impose new requirements on their existing
projects. Furthermore, these commenters explained that they believed
that their existing programs adequately addressed the circular's
requirements.
    Four commenters with major capital projects involving the
construction of a new fixed guideway or extension of an existing fixed
guideway asked FTA to determine the applicability of the circular to
their projects. Two of these commenters had already developed SSMPs in
compliance with Chapter II, Section 6 of FTA Circular 5200.1A.

[[Page 34342]]

These commenters requested that FTA exempt their projects from the new
requirements in the proposed circular.
    FTA Response: Based on these comments, FTA is amending the
applicability of the final circular. FTA agrees that recipients with
major capital projects involving the rehabilitation or modernization of
an existing fixed guideway with a total project cost in excess of $100
million--initiated before August 1, 2007--did not have the opportunity
to budget resources to address the SSMP requirement in their projects.
Therefore, FTA will be exempting these projects--initiated before
August 1, 2007--from the requirement to develop an SSMP.
    However, FTA believes that recipients with major capital projects
involving the rehabilitation or modernization of an existing fixed
guideway with a total project cost in excess of $100 million--initiated
after August 1, 2007--will have ample opportunity to budget resources
to address the safety and security requirements in the final circular.
Therefore, FTA will require recipients with these projects--initiated
after August 1, 2007--to develop SSMPs.
    FTA also changed the proposed circular's applicability for
recipients with major capital projects involving the construction of a
new fixed guideway or extension of an existing fixed guideway. FTA
determined that the final circular will be applicable to these projects
in preliminary engineering or earlier project development phases as of
August 1, 2007. During the initial development or next update to the
PMP, these recipients must include SSMPs meeting the terms of this
circular as part of their PMPs. For all other recipients with major
capital projects involving the construction of a new fixed guideway or
extension of an existing fixed guideway (i.e., those in final design or
later project phases as of August 1, 2007), FTA decided that the terms
of the original guidance in Chapter II, Section 6 of Circular 5200.1A
will remain in effect.
    For recipients with major capital projects designated by the
Administrator with approved PMPs--as of August 1, 2007--FTA will not
require SSMPs meeting the terms of this circular. However, FTA
clarifies that, if applicable, these recipients must continue to comply
with the original safety and security management guidance provided in
Chapter II, Section 6, Safety and Security Management Plan of FTA's
FFGA Circular 5200.1A. Major capital projects designated by the
Administrator--initiated after August 1, 2007--will be required to
include SSMPs meeting the terms of the circular, as part of the PMPs
they submit to FTA.
2. Relationship of Circular to Other SAFETEA-LU Provisions
    In its notice of proposed circular, FTA reserved ``the right to
make page changes to the circular regarding updates to other
provisions, without subjecting the entire circular to public comment.''
One commenter felt that FTA should clarify in the final notice or
circular that FTA will ``offer any proposed changes for public comment
when the changes affect any binding obligations on recipients.''
    FTA Response: FTA agrees with this commenter. FTA appreciates that
other activities to fully implement SAFETEA-LU provisions are still on-
going and could potentially affect implementation of this circular. In
the event that FTA initiates a rulemaking that impacts this circular or
its implementation, FTA will provide the public with the opportunity to
comment on such changes through the appropriate rulemaking process. If
necessary, FTA will amend this circular based on the outcome of the
rulemaking process.
    By reserving the right to make changes to referenced guidance and
regulations without public comment, FTA is not attempting to deny the
public the opportunity to comment on elements of the circular that may
be affected by other FTA initiatives to implement SAFETEA-LU. FTA is
merely asserting the need to keep the circular up-to-date with the
current versions of referenced rules and guidance.
3. Coordination With Existing Safety and Security Requirements
    Six commenters questioned how FTA will coordinate its SSMP
requirements with respect to State oversight agencies and safety and
security requirements specified in 49 CFR part 659. Specifically, these
commenters asked FTA: (1) To clarify how its existing safety and
security certification requirements for rail transit agencies covered
under 49 CFR part 659 would be addressed in the SSMP and in the FTA
PMOC process to review SSMPs, and (2) to clarify how conflicts will be
avoided between FTA PMOCs and State oversight agencies.
    FTA Response: In addressing the safety and security of major
capital projects undertaken by recipients at existing rail transit
agencies as defined in 49 CFR 659.5, FTA recognizes that there is a
potential for conflict between State oversight agencies and FTA's
Regional Offices and PMOCs. FTA notes, however, Section 9 of Chapter IV
of the final circular, requires recipients to explain their process for
coordination with the State oversight agencies and to identify any
specific requirements they must address.
    If the State oversight agency has implemented specific requirements
affecting the safety and security certification process carried out by
the recipient, then these requirements should be identified or
referenced in Section 9 of the SSMP. FTA Regional Offices and PMOCs
will then be aware of these requirements, and will work closely with
the recipient and the State oversight agency to coordinate activities
and to avoid conflicts from the beginning of the project.
    On the topic of clarifying how FTA will incorporate existing safety
and security certification requirements mandated by FTA in 49 CFR part
659 into this circular, FTA notes that, before establishing the 11 SSMP
Sections in Chapter IV of this circular, FTA carefully reviewed all
existing requirements to minimize the possibility for conflict. For
rail transit agencies as defined in 49 CFR 659.5, FTA coordinated the
required activities in this circular with the activities currently
required in FTA 49 CFR part 659.
    For example, in 49 CFR 659.19(h), FTA requires the SSPP developed
by rail transit agencies and reviewed and approved by State oversight
agencies to include ``a description of the safety certification process
required by the rail transit agency to ensure that safety concerns and
hazards are adequately addressed prior to the initiation of passenger
operations for New Starts and subsequent major projects to extend,
rehabilitate, or modify an existing system, or to replace vehicles and
equipment.'' FTA includes a similar requirement for security in 49 CFR
659.23(b), which states that the rail transit agency, in its System
Security Plan, must ``document the rail transit agency's process for
managing threats and vulnerabilities during operations, and for major
projects, extensions, new vehicles and equipment, including integration
with the safety certification process.''
    These requirements make it clear that existing rail transit
agencies, as defined in 49 CFR 659.5, must perform safety and security
certification for major projects at their systems. However, in 49 CFR
part 659, FTA did not specify the types of projects for which this
certification must be performed, the elements to be included in this
certification, or the project thresholds triggering specific safety and
security management activities.

[[Page 34343]]

    Because FTA left the specific details of complying with these
requirements up to the individual rail transit agencies, FTA believes,
if these rail transit agencies choose to be recipients of major capital
projects covered by 49 CFR part 633, then these rail transit agencies
must prepare SSMPs for the major capital project, as specified in the
final circular. FTA has been careful to ensure that the requirements
specified in the final circular conform both to existing guidance
provided for States and rail transit agencies implementing 49 CFR part
659 and to FTA's ``Handbook for Transit Safety and Security
Certification,'' (2002).
    On the topic of coordinating oversight activities between FTA PMOCs
and the State oversight agencies, FTA recognizes that both State
oversight agencies and FTA PMOCs may be reviewing a recipient's
compliance with the sections specified in Chapter IV of the final
circular. In this activity, of course, there is the potential for FTA
PMOCs and the State oversight agencies or their contractors to make
different and potentially conflicting findings.
    FTA recognizes the important role State oversight agencies have in
ensuring that a viable safety and security certification process is in
place at the rail transit agencies in their jurisdictions, and FTA
encourages their participation in the PMOC process. Since December
2002, FTA, through its PMOCs, has coordinated with State oversight
agencies regarding how their requirements for safety and security
certification are addressed by recipients who must comply with Chapter
II, Section 6 of FTA's Circular 5200.1A. FTA learned a great deal from
this coordination.
    FTA now invites State oversight agency representatives to attend
Quarterly Review Meetings and to work with FTA Headquarters, Regional
Offices, and PMOCs regarding areas of shared interest. In every PMOC
Monthly Report, PMOCs document information regarding the recipient's
compliance with State oversight agency requirements. FTA PMOCs also
work closely with many State oversight agencies to ensure consistent
review and evaluation of relevant project documents, plans, and
procedures. In certain cases, representatives from State oversight
agencies attend PMOC monthly on-site visits.
    In a few cases, State oversight agencies have implemented rules
that require formal safety and security certification be delivered to
them, and reviewed and approved by them, prior to the initiation of a
capital project into revenue service. In these instances, FTA and its
PMOCs incorporate this required review and approval into their project
monitoring activities.
    In the majority of cases, FTA and its PMOCs work with the State
oversight agencies to ensure that identified safety and security
management activities, as specified in the rail transit agency's SSPP
and System Security Plan, are carried out for all projects covered
under 49 CFR part 633. In many instances, State oversight agencies
encourage FTA and its PMOCs to take the lead in this process.
    Over the last five years, FTA has built a sound partnership with
the State oversight agencies, and FTA believes this strong partnership
will continue into the future. FTA hosts an annual meeting with the all
of the State oversight agency program managers where critical issues,
including issues of coordination between FTA Regional Offices and
PMOCs, are discussed. As part of the audit program for 49 CFR part 659,
FTA also works with the State oversight agencies to assess their
implementation of 49 CFR 659.19(h) and 49 CFR 659.23(b) and to identify
and resolve any coordination issues between the State oversight agency
and FTA PMOCs. Finally, FTA's Office of Safety and Security routinely
works with State oversight agencies and FTA Regional Offices to
effectively resolve coordination issues.
    FTA is committed to ensuring any issues with the potential for
conflict are identified and addressed as quickly as possible. Any
recipient or State oversight agency representative anticipating a
potential conflict should notify the Safety Team Leader at FTA's Office
of Safety and Security immediately. In the event of such a conflict,
FTA's Office of Safety and Security will work with the FTA Regional
Office and State oversight agency to ensure timely resolution.
4. FRA Approval of the SSMP
    One commenter asked FTA to clarify ``which agency ultimately has
oversight and approval authority over safety and security management
plans developed for commuter railways or other New Starts or expanded
rail systems regulated by the FRA.''
    FTA Response: Only FTA reviews and approves the SSMP. However, FTA
recognizes that FRA has requirements for safety and security
certification similar to those issued by FTA in 49 CFR part 659. These
requirements can be found in Section 6 of the ``Manual for the
Development of System Safety Program Plans for Commuter Railroads''
(2006), published by APTA and adopted by commuter railroads to address
FRA requirements for an SSPP as specified in FRA's Emergency Order 20
(1996). FRA addresses security certification in ``Element 17'' of this
Manual.
    In its safety and security certification activities, FRA typically
focuses on the performance of specific hazard analysis during design
and engineering and compliance with FRA regulations (49 CFR parts 200
to 265). Until the project demonstrates compliance with these
regulations, FRA will not grant authority to operate on the general
railroad system.
    For commuter rail projects and light rail project with shared track
waivers, FTA Regional Offices and PMOCs work closely with FRA to ensure
compliance with FRA requirements and regulations. FTA believes that
compliance with FRA requirements and regulations is a critical
component of the safety and security management program established for
the project. Therefore, FTA Regional Offices and PMOCs, as part of
their monthly monitoring functions, track recipients' compliance with
FRA requirements.
5. Confusion Regarding How the SSMP Can Be Part of the PMP
    One commenter asked FTA to clarify how the SSMP could be part of
the PMP. This commenter wanted to know how a separate plan could be
developed and referenced as part of the PMP.
    FTA Response: In Chapter II, Section 5, Project Management Plan, of
FTA's FFGA Circular 5200.1A, FTA explains that the PMP, as required in
49 CFR part 633, refers not only to the actual PMP itself, but also to
supporting plans developed to implement the PMP, such as the Quality
Assurance/Quality Control (QA/QC) plan and the SSMP, which may be
included as chapters in the PMP or referenced as separate plans by the
PMP. For more clarification, FTA encourages this commenter to review
Chapter II of FTA's Circular 5200.1A and Chapters I and II of FTA's
``Update to the Project and Construction Management Guidelines'' (2003
Update).
6. SSMP Requirement for Mature Transit Agencies
    Eight commenters asked FTA to explain why it requires the SSMP for
existing transit agencies with mature safety and security programs,
when these agencies already develop Safety and Security Certification
Plans for projects covered under 49 CFR part 633. These commenters felt
that FTA should not require mature agencies to develop SSMPs, and urged
FTA simply to review their existing safety and security programs
related to project development

[[Page 34344]]

instead. In addition, these commenters felt that FTA should only
request an SSMP if the project was a unique project for an existing
transit agency or the construction of a new fixed guideway system for a
new agency.
    FTA Response: FTA recognizes that existing transit agencies have
programs and plans in place that cover some, or even most, of the
requirements specified in Chapter IV of the proposed circular. However,
based on its experience, FTA does not believe that these existing
programs provide an integrated and coherent listing of all safety and
security management activities for the projects covered under 49 CFR
part 633.
    FTA encourages recipients at mature agencies to use the 11 Sections
in Chapter IV of the final circular as a checklist for identifying the
minimum safety and security management activities FTA requires. In the
event a recipient has an existing program or plan in place that
addresses requirements specified one or more of the 11 Sections
specified in Chapter IV of this circular, FTA encourages the recipient
to state this fact in the applicable section of the SSMP, and to
reference the applicable supporting document, including the chapter and
page numbers where the program or plan can be located. In this
instance, FTA only requires the recipient to provide sufficient
information in this section to direct FTA and its PMOCs to these
documents.
    When a recipient addresses the majority of the circular's
requirements in other existing documents, FTA intends for the SSMP to
present an integrated, coherent approach for the project's safety and
security management program that can direct all involved project
participants to the applicable supporting documents. In this situation,
FTA believes that the SSMP will enhance the recipient's ability to
communicate the elements of its safety and security program with
project team members, project leadership, other employees and
contractors, FTA and its PMOCs, and other involved agencies (i.e.,
State oversight agencies, FRA, DHS/TSA).
7. Applicability of SSMP Sections to all Projects
    Eight commenters expressed their concern that the proposed circular
appeared to take a ``one-size-fits-all'' or ``cookie-cutter'' approach.
Specifically, these commenters asked FTA to clarify how it would apply
the SSMP circular to different types of projects during different
project phases. These commenters also asked FTA to provide additional
detail regarding how FTA would determine whether a project had to
address specific SSMP Sections.
    FTA Response: In its proposed circular, FTA intended for recipients
to reference their existing programs, plans, and applicable supporting
documentation in their SSMPs for FTA review. However, FTA recognizes
that commenters need more information on referencing provisions and how
FTA will determine whether a project must address specific SSMP
Sections.
    On the topic of the applicability of the circular's requirements to
different types of projects, FTA is revising Chapter III of the
proposed circular to include a provision in the final circular that
enables recipients to work with the FTA Regional Offices and the PMOCs
assigned to their projects to determine which of the 11 Sections
specified in Chapter IV of the final circular are applicable. Also, in
the Appendix to the final circular, FTA is including additional
information regarding the level of detail FTA requires recipients to
provide for different types of projects in different development
phases.
    On the topic of how FTA will determine whether a recipient has to
address specific SSMP Sections, FTA directs commenters to the Appendix
Checklist and to the evaluation criteria specified in Chapter II of the
final circular. Using these tools, the FTA Regional Offices and PMOCs
can coordinate with recipients, following the communication and
document submission and review protocols FTA established for the PMO
Program, to determine the applicability of specific Sections. If
recipients have specific questions, comments, or concerns regarding the
applicability of particular SSMP Sections to their projects, FTA
encourages them to contact FTA's Office of Safety and Security, their
FTA Regional Office, or their PMOCs.
8. Impact of Addressing Safety and Security Earlier
    Eight commenters identified the importance of addressing safety and
security earlier in the project development process, particularly for
new fixed guideway systems. One commenter expressed appreciation for
FTA's circular, stating that it ``will bring the requirement for an
SSMP by applicant transit agencies into the project process much
earlier than is currently required.'' This commenter identified the
benefits gained from linking system design and construction to
operational safety from early in project development. This commenter
further commented that ``considering the importance of safety and
security as projects evolve from conceptual engineering through final
design, construction, and implementation by incorporating these
elements into the PMP should result in improved system design and cost
savings.''
    Other commenters appreciated FTA's efforts in creating the circular
and recognized that recipients must use a consistent, verifiable, and
systematic approach to ensure that safety and security are integrated
into all aspects of projects. However, six commenters expressed concern
that the proposed circular ``front-load[ed] too much analysis and study
into the earliest stages of project planning and introduce[d]
unnecessary soft costs and delay into processes already dogged by too
much of both.'' These commenters noted that expanding the breadth of
FTA review of projects at the earliest stages may invite practical
difficulties and encourage PMOCs to engage in overly extensive analysis
of potential hazards and vulnerabilities, particularly for projects in
early planning and engineering phases. These commenters further noted
that because no oversight contractor would want ``to be seen as lax on
safety or security,'' the PMOC may tend to ``to err on the side of
caution,'' which may lead to ``unnecessary expense and delay.''
    These commenters asked FTA to further clarify the specific
activities it would require recipients with major capital projects
involving new fixed guideways or extensions to existing fixed guideways
to perform during preliminary engineering and final design. These
commenters also encouraged FTA to require the initial SSMP later in the
project development process. For example, three commenters recommended
that FTA require the initial SSMP no earlier than at 60 percent final
design.
    FTA Response: FTA understands commenters' concerns regarding the
potential for additional expense and delay resulting from FTA oversight
of safety and security in projects beginning with the request to enter
preliminary engineering. However, based on its past experience with
major capital projects covered under Chapter II, Section 6 of FTA's
FFGA Circular 5200.1A, FTA believes recipients should submit the SSMP
with their request to enter preliminary engineering, and not at a later
time.
    On the topic of the expanded breadth of FTA safety and security
oversight earlier in the process, FTA appreciates commenters' concerns
that PMOCs may tend to err on the side of caution. FTA is committed to
working through the Regional Offices and PMOCs to ensure that
application of this circular does not

[[Page 34345]]

result in unnecessary delays or costs to projects requesting to enter
preliminary engineering or final design. FTA does not want to waste
valuable project resources and schedule on unnecessary analyses or
assessments. FTA Headquarters and Regional Office personnel will not be
directing PMOCs to demand extensive safety and security assessments as
part of a recipient's SSMP with the request to enter preliminary
engineering.
    To clarify FTA's expectations for SSMPs submitted with the request
to enter preliminary engineering, FTA is including an Appendix to this
final circular that provides a checklist for recipients and PMOCs
regarding the application of the 11 sections in Chapter IV of this
final circular to different types of projects and different project
phases. FTA believes this approach will ensure that safety and security
are adequately addressed during the early project phases without
imposing a substantial burden on recipients.
    To ensure consistency in the review of SSMPs, FTA is also
developing PMO program guidance. FTA will share this guidance with
recipients when it is available. FTA encourages recipients to meet with
their Regional Offices and PMOCs to request copies of this guidance,
and to discuss concerns they may have regarding the PMOCs' activities
to review SSMPs developed at request to enter preliminary engineering
and final design.
9. The Circular's Financial and Administrative Burden
    Ten commenters expressed concern that the proposed circular would
impose financial and administrative burdens on FTA recipients. These
commenters stated that the proposed requirements may necessitate
additional staff and/or contractors, additional training for project
personnel, and additional coordination with FTA and the PMOCs, which
would increase the cost of their major capital projects, and perhaps,
extend the project schedule. These commenters urged FTA to acknowledge
the potential increase in capital and operating costs for projects
resulting from implementation of the proposed circular.
    FTA Response: FTA acknowledges that recipients may have to expend
additional resources up-front to address safety and security concerns
to conform to the terms of the final circular. However, based on past
experience, FTA believes these costs will be recovered in smoother
implementation of later project phases, fewer change orders during
construction and testing, and fewer accidents and injuries while in
revenue service. Further, FTA reminds commenters that expenses
associated with implementing the final circular are eligible expenses
under FTA's Section 5309 funding programs.

B. Section-by-Section Discussion

    In the notice of proposed circular, FTA asked specific questions
related to each chapter of the proposed circular. This section
summarizes the provisions that were subject to comment, the nature of
the comment, and FTA's response.
1. Chapter I--Introduction and Background
    This chapter provides a general introduction to FTA that FTA is
including in all new and revised program circulars for the orientation
of readers new to FTA programs. Chapter I also includes definitions.
One party submitted comments on this chapter.
    This commenter, representing several State DOTs that participate in
FTA's State oversight program, requested that FTA revise the
definitions in Chapter I to parallel the definitions in 49 CFR part
659. FTA agrees, and has incorporated definitions for ``Contractor,''
``Hazard,'' ``Passenger,'' ``Safety,'' ``Security,'' ``System Safety
Program Plan,'' and ``System Security Plan'' as specified in 49 CFR
659.5.
    In the interest of State DOTs that may be serving as pass-through
agencies for Federal funds, this commenter also requested that FTA
clearly define who was the responsible party for preparing the SSMP.
FTA agrees, and added a definition of ``recipient'' to the final
circular. In the final circular, FTA clarifies that the recipient
responsible for preparing the SSMP is also the recipient responsible
for preparing the PMP. Therefore, recipients should address any issues
involving the roles and responsibilities of different project
participants following the protocols established in the PMP.
    This commenter also requested that FTA clarify the applicability of
the circular in cases where the project does not receive Federal
funding during the design and construction phases, but where the
project will receive Federal funds during operations. Because the
circular only applies to major capital projects, which by definition,
must receive Federal funds during design and construction, FTA
clarifies that the final circular does not apply in cases where the
project receives funds during operations.
2. Chapter II--Authority, Activities, FTA Evaluation Criteria, and
Protection of Sensitive Security Information
    Chapter II of the proposed circular described the specific safety
and security management activities to be performed by recipients with
projects covered by 49 CFR part 633. Chapter II also identified
criteria FTA would use in evaluating the performance of these
activities. Finally, Chapter II discussed the protocols FTA and PMOCs
would use in protecting Sensitive Security Information (SSI).
    FTA received comments from eight commenters on this chapter. These
commenters generally agreed with the appropriateness of the safety and
security management activities that FTA identified in Chapter II of the
proposed circular. However, five commenters were concerned that they
may not be able to address every activity FTA identified in Chapter II.
For example, one commenter asked whether a program for emergency
exercises and drills was necessary for a major capital project
involving the rehabilitation or modernization of an existing fixed
guideway with a total project cost in excess of $100 million.
    FTA intended for this concern to be addressed through the use of
referencing. In the example above, for instance, FTA expects that, in
the SSMP, the recipient would prepare a paragraph or two referencing
its existing emergency exercise and drill program and any changes that
may result because of the project (i.e., new emergency procedures or
protocols). If no changes are anticipated, then the recipient should
state, in the appropriate SSMP section, that the project will have no
impacts on the existing emergency exercise and drill program.
    FTA received several comments on the proposed evaluation criteria.
These commenters appreciated the level of detail in this section
because it clearly indicated to recipients the safety and security
areas FTA considers to be of primary importance. However, six
commenters also believed the proposed evaluation criteria were
cumbersome, particularly for recipients submitting SSMPs at the request
to enter preliminary engineering.
    Three commenters stated that they could easily address some of the
evaluation criteria in the SSMP they developed for the request to enter
preliminary engineering. For example, these commenters felt they could
provide the project budget and schedule for safety and security
activities with the request to enter preliminary engineering. These
commenters also

[[Page 34346]]

indicated that they could address management commitment/philosophy and
provide a general discussion of how they would integrate safety and
security into the project development process.
    However, these commenters also felt they could not address the
majority of the evaluation criteria FTA proposed in Chapter II at the
request to enter preliminary engineering. For example, one commenter
questioned how recipients developing SSMPs at the request to enter
preliminary engineering could explain their programs for ``ensuring
that safety and security are addressed in technical specifications and
contract documents,'' when the recipients had not yet developed them.
    FTA is concerned some commenters may have misinterpreted FTA's
intention in this section. As anticipated in the proposed circular, FTA
will apply the evaluation criteria in Chapter II over the entire
lifecycle of the recipient's project development process. FTA does not
expect a recipient preparing an SSMP at the request to enter
preliminary engineering to have developed comprehensive programs for
each evaluation criterion.
    For example, at the request to enter preliminary engineering, FTA
will not evaluate a recipient on the quality of its process for
``ensuring that safety and security are addressed in technical
specifications and contracts documents.'' However, at this phase, FTA
expects the recipient to identify that this activity is a necessary
step in ensuring that safety and security will be appropriately
addressed over the course of the project.
    One commenter recommended that FTA clearly identify in the final
circular, either by text or chart, which safety and security activities
FTA requires recipients to perform during specific project phases. FTA
agrees and is revising the proposed circular to include an Appendix
that identifies the specific activities FTA expects recipients to
perform for different types of major capital projects during each
project development phase. FTA also is revising the text introducing
this section of the proposed circular to clarify that these criteria
will be applied over the life of the project, and not each time FTA
requires the recipient to submit the SSMP.
    Three commenters asked whether FTA would be willing to consider
differences between small and large agencies and mature versus new
agencies when it applies the evaluation criteria. Another commenter
recommended that FTA exclude the procurement of bus vehicles and bus-
related equipment from the SSMP requirement, or that FTA provide a
different set of criteria for evaluating how safety and security are
addressed in these projects. FTA requires all recipients implementing
projects covered by 49 CFR part 633 to be held to the same minimum
requirements. Therefore, as proposed, FTA will apply the evaluation
criteria consistently for all recipients with these projects,
regardless of their size, project type, or level of experience.
    Two commenters requested that FTA tailor its evaluation criteria by
providing special considerations for recipients that are not able to
allocate staff and contractor resources for their safety and security
programs. FTA requires, as part of its technical capacity requirement,
any recipient undertaking a project covered by 49 CFR part 633 to have
sufficient resources in place to address the requirements in the final
circular.
    One commenter stated that because transit authorities and their
facilities, infrastructure, vehicles, operations, riders, and local
jurisdictions are all unique, FTA should allow flexibility in the
application of its evaluation criteria. This commenter recommended FTA,
to the extent possible, use performance-based rather than process-based
evaluation criteria. Based on its considerable experience, FTA believes
the process-based approach FTA specified in the proposed circular
allows FTA and its PMOCs to monitor recipient activities in the most
effective manner throughout the phases of the project development
process. FTA retains the process-based approach in the final circular.
    Four commenters requested additional information on the PMOC
procedures used to implement the circular. One commenter noted that FTA
is in the process of updating its PMO program procedures. Three
commenters felt FTA should reference the specific PMOC procedures FTA
will use to evaluate SSMPs in the final circular. These commenters felt
if FTA referenced these procedures in the final circular, then FTA
could provide recipients with a better understanding of how FTA will
apply the evaluation criteria. FTA agrees that the appropriate PMOC
guidance should be shared with recipients. As a matter of policy, FTA
does not publish PMOC guidance in circulars, and therefore, FTA will
not publish the PMOC guidance in the final circular. However, FTA
expects FTA Regional Offices to share this guidance with recipients
upon request. FTA urges recipients to meet with their FTA Regional
Offices and PMOCs regarding any issues they may have with the
implementation of FTA's evaluation criteria.
    FTA received four comments on the topic of SSI. These four
commenters stated that implementation of SSI requirements worked well
overall. One commenter requested additional details regarding the level
of security that FTA anticipates for various types of projects. In
response to this commenter, FTA expects the individual recipients to
determine the security requirements and design criteria for their
projects, and FTA only requires recipients follow a process that is
viable, implemented, and being integrated, as appropriate, into the
overall project management process.
    Another commenter indicated that FTA does not need to know the
types of safety and security analysis that recipients perform or their
detailed plans regarding operations and maintenance training and
procedures. This commenter felt this information could be exploited by
those wishing to do harm if FTA failed to protect it. For the same
reason, this commenter further stated that FTA does not need to know
the details of the verification process used by the recipients to
ensure that safety and security requirements have been addressed, or
the details of construction safety and security plans.
    FTA disagrees with this commenter because understanding these
details is critical to FTA's oversight of their implementation.
However, FTA appreciates the commenter's concerns regarding the
potential for the inappropriate release of SSI, and reminds this
commenter that FTA staff and PMOCs are obligated to follow the
provisions specified in 49 CFR part 15 and the SSI policy established
by recipients. Further, as explained in 49 CFR part 15, any SSI
information that a recipient submits to FTA, and, by extension, its
PMOCs, is exempted from being available to the public under the Freedom
of Information Act (FOIA). Therefore, FTA retains the language
addressing SSI as proposed in the circular.
3. Chapter III--Process for Preparing the SSMP
    Chapter III of the proposed circular explained the approach FTA
requires for developing and updating SSMPs. In the notice accompanying
the proposed circular, FTA asked recipients whether they required
additional guidance on the contents of the SSMP for different project
development phases.
    Eight commenters stated that they needed additional guidance
regarding FTA requirements for recipients developing SSMPs with the
request to enter preliminary engineering. Four of

[[Page 34347]]

these commenters felt that FTA's statement that the level of detail in
the SSMP submitted for entry into preliminary engineering should
contain ``a level of detail commensurate with the level of detail in
other PMP Sections'' was vague and subjective.
    FTA appreciates these comments. Accordingly, FTA is adding an
Appendix to the final circular that provides additional detail on the
information FTA requires recipients to include in SSMPs during
different project phases.
4. Chapter IV--Required SSMP Contents
    In Chapter IV of the proposed circular, FTA listed the 11 Sections
the recipient must include in the SSMP. In the notice accompanying the
proposed circular, FTA asked whether the proposed Sections were
reasonable, and if FTA should add other requirements. FTA also asked if
recipients needed additional guidance from FTA on the required contents
of the 11 Sections.
    Eight commenters expressed the opinions that while some of FTA's
proposed SSMP Sections in Chapter IV were appropriate, some of them
were redundant and unnecessary because recipients at mature agencies
already address these activities in other documents or programs.
    One commenter provided a detailed review of Chapter IV of the
circular and recommended FTA eliminate several of the 11 Sections FTA
proposed for inclusion in the SSMP. This commenter recommended FTA
eliminate the requirement for the identification of ``key personnel by
name, title, department, and affiliation'' in Section 3 of the SSMP.
This commenter also felt that FTA should not require recipients to
identify ``the distinct types of safety and security analysis'' they
will perform in Section 4 of the SSMP. This commenter also felt that
Sections 5, 6, and 7 of the SSMP, as proposed by FTA, were ``redundant
and should be eliminated as their requirements are already addressed as
part of required safety-certification process.''
    FTA understands that existing transit agencies currently develop
numerous plans that address safety and security management issues for
projects covered by 49 CFR part 633. FTA appreciates, with so many
documents, the overall requirements for safety and security can be
difficult to understand and communicate effectively to employees and
external agencies. FTA recognizes that requiring recipients to add one
more safety and security plan will not improve the situation. However,
FTA has provided oversight for a number of major capital projects where
safety and security issues were not adequately addressed. As a result,
FTA firmly believes that the requirement to develop and maintain SSMPs
will ensure recipients develop an integrated and centralized listing of
all activities to be performed for safety and security for their
projects.
    For instance, FTA has experienced several situations in which
recipients placed Full Funding Grant Agreements (FFGAs) in jeopardy
because they had not addressed fundamental safety and security issues.
For example, some recipients had not developed procedures to explain
decision-making regarding critical safety and security issues, could
not explain to FTA which positions or committees had responsibility for
overseeing contractors or for resolving disputes related to safety and
security issues, and/or made decisions regarding safety-critical items
without consulting the safety function. Furthermore, some recipients
could not explain whether the QA/QC function or the safety function
would be responsible for performing specific verification activities
related to safety certification. To address these concerns, FTA added
Sections 2 and 3 to Chapter IV of the proposed circular, and retains
them in the final circular.
    FTA also noted some recipients with FFGA applications under review
had not performed preliminary hazard analysis or threat and
vulnerability analysis for their projects. In other instances, FTA
observed that recipients had required contractors to perform safety and
security analysis, but that recipients had not integrated the results
of this analysis into their overall approach for identifying, managing,
and tracking hazards. To address these issues, FTA included Section 4
in Chapter IV of the proposed circular, and retains it in the final
circular.
    Moreover, FTA noted a number of instances where recipients with
approved FFGAs had failed to adequately identify safety and security
requirements and design criteria early in the project. FTA observed
that this failure caused these recipients to implement costly change
orders during construction to ensure that transit facilities met
municipal, county, and State fire/life safety codes and could receive
required sign-offs from local inspectors and fire marshals. FTA has
also observed situations where recipients did not perform independent
verification of safety and security requirements and design criteria
because they assumed other design review functions had performed it. To
address these concerns, FTA included Section 5 in Chapter IV of the
proposed circular, and retains it in the final circular.
    FTA also observed a few projects where recipients failed to train
personnel adequately to perform vehicle burn-in and systems integration
testing. In addition, FTA observed instances where recipients failed to
conduct emergency response drills and to test the readiness of
maintenance personnel prior to the initiation of revenue service. To
address these issues, FTA included Section 6 in Chapter IV of the
proposed circular, and retains it in the final circular.
    FTA also observed that a few recent projects were delayed from
initiating revenue service because the recipients could not complete
safety and security certification. FTA determined that these delays
occurred because the recipients did not pay sufficient attention to
safety and security issues earlier in the project development process.
FTA also observed that the recipients had not clarified roles and
responsibilities for safety and security certification to be carried
out by the recipient staff, the General Engineering Consultant (GEC),
the construction and systems installation contractors, and the resident
engineers. In each of these instances, FTA believes that had the
recipients paid more attention to safety and security earlier on in the
project, then the recipients' safety and security certification
processes would have moved forward much more effectively. Therefore,
FTA included Section 7 in Chapter IV of the proposed circular, and
retains it in the final circular.
    FTA has required recipients to address construction safety in their
PMPs for many years. In Section 8 of Chapter IV of the proposed
circular, FTA consolidated these requirements and extended them to
include construction site security. One commenter stated that
``construction safety and security may be overlooked in its importance
to transit security. Examples of elements that should be considered
during this phase, as well as key considerations that should be part of
hazard and vulnerability assessments, should be included in the text of
the circular.'' This commenter recommended that FTA further expand
these requirements. While FTA appreciates this commenter's concern, FTA
decided not to incorporate this commenter's suggestion into the final
circular because FTA will address these issues in future guidance and
training developed to implement the circular.
    In Sections 9, 10, and 11 of Chapter IV of the proposed circular,
FTA required recipients to explain their approaches for ensuring
coordination

[[Page 34348]]

with State oversight agencies, FRA and DHS, respectively and as
appropriate for their projects. FTA recognizes that recipients may have
documented this information in other plans and procedures. In
addressing these SSMP Sections, FTA encourages recipients to reference
these other documents. In other sections of this notice, FTA explains
that when recipients clearly identify these requirements, it will help
to minimize potential conflicts between FTA/PMOCs and State oversight
agencies, FRA, and DHS.
    Finally, in response to Chapter IV of the proposed circular, three
commenters requested FTA provide additional guidance and/or training on
how to implement the circular. FTA agrees with these commenters. FTA
will develop training on this circular targeted at recipients with
major capital projects within the next two years.

    Issued in Washington, DC, this 14th day of June, 2007.
James S. Simpson,
Administrator, Federal Transit Administration.
[FR Doc. E7-11970 Filed 6-20-07; 8:45 am]

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