67034 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 659

[Docket No. 92–D]

RIN 2132–AA39

Rail Fixed Guideway Systems; State

Safety Oversight

AGENCY: Federal Transit Administration,

DOT.

ACTION: Final rule.

SUMMARY: As required by the Intermodal

Surface Transportation Efficiency Act of

1991, the Federal Transit

Administration (FTA) issues a rule

requiring States to oversee the safety of

rail fixed guideway systems not

regulated by the Federal Railroad

Administration (FRA). This document

accordingly sets forth FTA’s State safety

oversight program, which is intended to

improve the safety of rail fixed

guideway systems.

EFFECTIVE DATE: This regulation is

effective January 26, 1996. The

incorporation by reference of certain

documents in the regulation is approved

by the Director of the Federal Register

as of January 26, 1996.

FOR FURTHER INFORMATION CONTACT: For

program issues: Judy Meade or Roy

Field, Office of Safety and Security,

Federal Transit Administration, (202)

366–2896 (telephone) or (202) 366–3765

(fax). For legal issues: Nancy Zaczek,

Office of Chief Counsel, Federal Transit

Administration, (202) 366–4011 or (202)

366–3809.

SUPPLEMENTARY INFORMATION:

This preamble is organized as follows:

I. Background

A. 49 U.S.C. § 5330

B. Summary of the final rule

C. Overview of the comments

II. Discussion of the Comments

A. Rail Fixed Guideway System

B. System Safety Program Standard

C. System Safety Program Plan—the six

factors

D. Planning, design, and construction

E. Accountability factor

F. EPA and OSHA requirements

G. Security

H. Biennial safety reviews

I. Safety audits

J. Accident

K. Hazardous condition

L. Investigations

M. Confidentiality of oversight agency

investigation reports

N. Certified Transit Safety Professional

III. Section-by-Section Analysis

IV. Economic Analysis

V. Regulatory Process Matters

I. Background

The Intermodal Surface

Transportation Efficiency Act of 1991

(Pub. L. 102–240), enacted into law on

December 18, 1991, added section 28 to

the Federal Transit Act (recently

codified at 49 U.S.C. 5330 (1994)),

which requires the Federal Transit

Administration to issue regulations

creating a State oversight program. On

June 25, 1992, FTA issued an Advance

Notice of Proposed Rulemaking

(ANPRM) soliciting public comment on

a range of issues to be addressed in

drafting a Notice of Proposed

Rulemaking (NPRM). 57 FR 28572. The

agency held hearings on the ANPRM in

Los Angeles, California; Portland,

Oregon; and Washington, DC. Thirtyfive entities either submitted comments

to the docket or testified at one of the

three hearings, including fifteen transit

authorities, three utility commissions,

eight States, one engineering firm, two

transit associations, one labor union,

one Federal agency, one transit supplier,

two representatives from the people

mover industry, and one transportation

consultant.

On December 9, 1993, FTA published

its NPRM (58 FR 64855) and today

publishes its final rule, which requires

States to oversee the safety of rail fixed

guideway systems.

A. 49 U.S.C. 5330

In general, section 5330 applies only

to those States in which a rail fixed

guideway system operates that is not

regulated by the Federal Railroad

Administration, and requires any such

State to designate a State oversight

agency to be responsible for overseeing

the rail fixed guideway system’s safety

practices. FTA is required to issue a rule

implementing the program and may

withhold Federal funds if a State fails to

implement the rule.

More specifically, the statute

describes the responsibilities of the

State and the agency the State

designates to provide oversight, which

in most instances will be an agency of

the State because most rail fixed

guideway systems operate in only one

State. When a rail fixed guideway

system operates in more than one State,

however, the statute permits the affected

States to designate any entity, other than

the transit agency itself, to oversee that

rail fixed guideway system.

Whether the oversight agency is a

State agency or some other entity, it

must require each affected transit

agency to create a system safety program

plan, which the oversight agency must

review and approve. The oversight

agency must also investigate accidents

and hazardous conditions. Once a

hazardous condition has been

discovered, the oversight agency must

require the transit agency to correct or

eliminate it.

If a State has not met these

requirements or has not made adequate

efforts to comply with them, the

Secretary may withhold up to five

percent of a fiscal year’s apportionment

under FTA’s formula program for

urbanized areas (formerly section 9)

attributable to the State or an affected

urbanized area in the State.

B. Summary of the Final Rule

The rule delineates the

responsibilities of the State, the

oversight agency, the transit agency, and

the FTA.

The State

Under the rule, the primary

responsibility of the State is to designate

an entity or entities to oversee the safety

of a rail fixed guideway system. When

the rail fixed guideway system operates

only within a single State, that entity or

entities must be an agency of the State;

when it operates in more than one State,

the affected States may designate a

single entity to oversee that system. In

neither case may the State designate the

transit agency as the oversight agency.

To ensure the oversight agency’s

candid assessment of the probable cause

of a particular accident or unacceptable

hazardous condition, the rule allows the

State to enact legislation prohibiting the

disclosure of oversight agency

investigation reports.

The Oversight Agency

The rule directs the oversight agency,

or an entity acting on its behalf, to

develop a system safety program

standard, a document that establishes

the relationship between the oversight

and transit agencies and specifies the

procedures that the transit agency must

follow. The system safety program

standard must, at a minimum, comply

with the American Public Transit

Association’s ‘‘Manual for the

Development of Rail Transit System

Safety Program Plans’’ (‘‘APTA

Guidelines’’), a manual widely used

throughout the transit industry and

available from the American Public

Transit Association (APTA), 1201 New

York Avenue, N.W., Washington, D.C.

20005–3917, or the Federal Transit

Administration, Office of Safety and

Security, 400 7th Street, S.W.,

Washington, D.C. 20590. The APTA

Guidelines assist in developing safety

practices to reduce the likelihood of

unintentional events that may lead to

death, injury, or property damage. In
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations 67035

addition, the system safety program

standard must include specific

provisions addressing ‘‘security’’

matters, intentional wrongful or

criminal acts, such as muggings, rapes,

murders, assaults, or terrorist activities.

To develop this portion of the system

safety program plan, we suggest that the

oversight agency use FTA’s ‘‘Transit

Security Procedures Guide’’ and

‘‘Transit System Security Program

Planning Guide,’’ available from the

FTA at the address above.

The oversight agency must require the

transit agency to develop a system safety

program plan that complies with the

oversight agency’s system safety

program standard. By January 1, 1997,

the oversight agency must review and

approve, in writing, the transit agency’s

system safety program plan; however,

the ‘‘security’’ provisions of the system

safety program plan must be approved

initially by the oversight agency by

January 1, 1998. After the initial

approvals, the oversight agency must

review, as necessary, the transit

agency’s system safety program plan

and determine whether it should be

updated. All oversight agency approvals

must be in writing.

The rule allows the oversight agency

to prohibit the transit agency from

publicly releasing the ‘‘security’’

provisions in the system safety program

plan.

The oversight agency must require the

transit agency to conduct safety audits

according to the Internal Safety Audit

Process detailed in checklist number 9

of the APTA Guidelines. Once a year the

transit agency must compile and submit

an audit report to the oversight agency

or an entity acting on its behalf for

review.

Aside from reviewing the transit

agency’s safety audit reports, the

oversight agency must conduct on-site

safety reviews every three years. In a

safety review, the oversight agency must

assess whether the transit agency’s

actual safety practices and procedures

comply with its system safety program

plan. Once this review is completed, the

oversight agency must prepare a report

containing its findings and

recommendations, an analysis of the

efficacy of the transit agency’s system

safety program plan, and a

determination of whether the system

safety program plan should be updated.

The oversight agency must require the

transit agency to report the occurrence

of accidents and unacceptable

hazardous conditions within a period of

time specified by the oversight agency.

The oversight agency must investigate

such reports in accordance with

procedures it has established. The

oversight agency may conduct its own

investigation, use a contractor to

conduct an investigation, or rely on the

investigation conducted by the transit

agency or the National Transportation

Safety Board (NTSB).

After the oversight agency has

investigated an accident or unacceptable

hazardous condition, it must require the

transit agency to minimize, control,

correct, or eliminate it, in accordance

with a corrective action plan drafted by

the transit agency and approved by the

oversight agency.

The oversight agency must submit

three kinds of reports to FTA: an initial

submission, an annual submission, and

a periodic submission. In the initial

submission, the oversight agency lists

the names and addresses of the rail

fixed guideway systems it oversees. This

report must be updated only when that

information changes. In the annual

submissions, the oversight agency must

submit to FTA a publicly available

report summarizing its oversight

activities for the past year. Periodically,

an oversight agency must submit to FTA

status reports of accidents, hazardous

conditions, and corrective action plans.

The oversight agency must submit these

reports only if FTA so requests.

The Transit Agency

The transit agency must develop a

system safety program plan that

complies with the oversight agency’s

system safety program standard. It must

conduct safety audits that comply with

the Internal Safety Audit Process, APTA

Guidelines, checklist number 9, and

draft and submit to the oversight agency

a report summarizing the results of the

safety audit. The transit agency must

classify hazardous conditions according

to the APTA Guidelines’ Hazard

Resolution Matrix. The transit agency

must report, within the timeframe

specified by the oversight agency, any

accident or unacceptable hazardous

condition that has occurred on the rail

fixed guideway system. The transit

agency may, if the oversight agency so

chooses, conduct investigations on

behalf of the oversight agency. Once an

investigation has been completed, the

transit agency must obtain the oversight

agency’s approval of a corrective action

plan and then implement the plan so as

to minimize, control, correct, or

eliminate the particular unacceptable

hazardous condition or condition that

has caused an accident.

The Federal Transit Administration

The FTA assesses whether the State

has complied with the rule or has made

adequate efforts to comply with it. If the

FTA determines that the State is not in

compliance or has not made adequate

efforts to comply, it may withhold up to

five percent of the amount apportioned

for use in the State or affected urbanized

areas under FTA’s formula program for

urbanized areas (formerly section 9).

Also, FTA receives reports from the

oversight agency.

C. Overview of the Comments

The FTA received 60 comments in

response to the NPRM. FTA considered

all comments filed in a timely manner

as well as all statements and material

presented at the public hearings on the

rule. The breakdown among commenter

categories is as follows:

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

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

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

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

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

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

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

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

In Section II below, we discuss in

detail the public comments addressing

issues raised in the NPRM. One such

issue, how the term ‘‘rail fixed

guideway system’’ should be defined,

affects the scope of the rule. Another

key issue, how the system safety

program standard should be developed

and what it should include, will directly

affect the relationship between the

oversight and transit agencies. Most

important, we examine whether the

oversight agency should use the APTA

Guidelines or Military Standard 882B or

882C (MIL-STD 882B or 882C) to

develop its system safety program

standard. We also examine whether the

system safety program standard should

cover the planning, design, and

construction phases of a rail fixed

guideway system’s life cycle; EPA and

OSHA-type matters; ‘‘security’’; and

other issues.

Also, we discuss the oversight

agency’s role in investigating accidents

and unacceptable hazardous conditions.

A related issue concerns whether

investigation reports should be kept

confidential.

For additional discussion on

individual issues, see also the SectionBy-Section Analysis below in Section

III.

II. Discussion of the Comments

A. Rail Fixed Guideway System

The first issue is the definition of ‘‘rail

fixed guideway system.’’ Statutes give

us limited guidance in this regard;

section 5330, the authority for this

rulemaking, states that it applies ‘‘only

to States that have rail fixed guideway

mass transportation systems not subject
67036 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations

to regulation by the Federal Railroad

Administration.’’ Another provision, 49

U.S.C. § 5302, defines ‘‘mass

transportation’’ as ‘‘transportation by a

conveyance that provides regular and

continuing general or special

transportation to the public * * *.’’

Finally, 49 U.S.C. § 20102(1), which

defines railroads subject to regulation by

the FRA, specifically excludes ‘‘rapid

transit operations within an urban area

that are not connected to the general

railroad system of transportation.’’ Of

mass transportation systems, generally,

only commuter railroads are regulated

by the FRA. Therefore, we asked in both

the ANPRM and the NPRM whether we

should adopt a narrow definition and

include only light and heavy rail

systems or a broad definition and

include other rail systems, such as

monorails, inclined planes, trolley

systems, and funiculars, as well.

Many commenters to the ANPRM did

not address this issue. Those that

responded directed their comments to

specific issues; for instance, six

commenters discussed including people

movers, while only two commenters

proposed a definition for FTA’s

consideration. In the NPRM, FTA

proposed to define ‘‘rail fixed guideway

system’’ as

Any public transportation facility not

regulated by the Federal Railroad

Administration, which occupies a separate

right-of-way exclusively for public

transportation or uses a steel-wheeled

catenary or other rail system sharing a rightof-way with other forms of transportation

and, which is included in the calculation of

fixed guideway route miles under section 9

of the FT Act.

As we explained in the preamble to

the NPRM, this definition would cover

light and heavy rail, cable cars, trolleys,

people movers, and inclined planes so

long as their mileage is included in the

calculation of fixed guideway route

miles under section 9 of the FT Act. We

further noted that the Morgantown

People Mover, which is not used in the

calculation of route miles under the

section 9 formula program, would not

be covered by the proposed rule, while

the Detroit People Mover, which is used

in the calculation of the section 9

formula would be covered. We further

noted that the definition also would not

cover rubber-wheeled trolley buses that

use a catenary system, as they are

subject to motor vehicle regulations.

Many of the commenters to the NPRM

urged FTA to adopt the narrow

definition, with most of them suggesting

that the definition be limited to light

and heavy rail systems only. In support

of their contention, some of these

commenters noted that in the past,

NTSB had recommended that FTA

oversee the safety of rapid rail transit

systems only, although these

commenters stated that light rail

systems should be covered by the rule

as well. Concerning people movers,

inclined planes, amusement rides,

funiculars, historical trolleys, cable cars,

and other rail transit systems, these

commenters opposed their inclusion,

opining that they do not present the

same level of risk to public safety as

posed by heavy and light rail systems.

NTSB also commented on this issue by

stating that although it had no accident

investigation experience with people movers

or incline planes that would provide a basis

to determine if these systems should be

covered by the FTA’s regulations, the Board

believe[s] that the safety of any system that

regularly transports people should be

monitored by an appropriate State or local

agency. Limiting the definition of a rail fixed

guideway system to those systems used by an

urbanized area in the calculation of fixed

guideway route miles under Section 9 of the

Federal Transit Act would apparently

exclude some of these systems from the

proposed regulation. Further, it is possible

that an urbanized area could not count in the

statutory formula to determine Section 9

Federal funds the rail route miles of a

particular system to avoid having the system

covered by the proposed oversight regulation.

In short, the Safety Board questions the need

for the Section 9 limitation to the definition.

FTA Response. Although most

commenters recommended that we

cover only light and heavy rail systems,

we agree with the NTSB that ‘‘any

system that regularly transports people

should be monitored by an appropriate

State or local agency.’’ Hence, the rule

covers inclined planes, monorails,

trolleys, automated guideways, and

funiculars along with light, rapid, and

heavy rail systems. We did, however,

change the definition to clarify that

guided busways are not covered.

We also made another change in light

of NTSB’s assertions that the proposed

definition may exclude some systems

that are not used to calculate fixed

guideway route miles under FTA’s

formula grant program for urbanized

areas. We do not believe this would be

the case because FTA’s grant program is

based, in part, on the amount of ‘‘fixed

guideway route miles’’ within an

urbanized area. It is therefore in the

urbanized area’s interest to include as

many systems as possible. Moreover, in

most instances, a system that receives

Federal funding under FTA’s formula

grant program for urbanized areas

would have its mileage included in the

calculation. The opposite, however, is

not true; there are systems whose

mileage is used in the calculation that

do not receive funding under FTA’s

formula grant program for urbanized

areas. That is why we proposed

covering those systems that are used in

the calculation instead of just certain

recipients of FTA funding; it is actually

a broader category. Nevertheless, we

have added a provision to cover any

system that receives funding under

FTA’s formula grant program for

urbanized areas or is used in the

calculation of ‘‘fixed guideway route

miles.’’ This definition should cover

most rail mass transit systems not

regulated by the FTA.

B. System Safety Program Standard

Section 5330 requires FTA to issue

regulations that direct the State

oversight agency to develop ‘‘a safety

program plan for each [rail] fixed

guideway mass transportation system in

the State.’’ In the NPRM, we proposed

to require the oversight agency to adopt

a system safety program standard,

which a transit agency would then use

to develop its system safety program

plan, the document used by the transit

agency to ensure that it uses proper

safety practices and procedures.

The NPRM further proposed that the

oversight agency’s ‘‘system safety

program standard’’ comply, at a

minimum, with the American Public

Transit Association’s ‘‘Manual for the

Development of Rail Transit System

Safety Program Plans,’’ (‘‘APTA

Guidelines’’). In the preamble to the

NPRM, we noted that we had

considered adopting Military Standard

882B (MIL–STD 882B), which has been

subsequently superseded by MIL–STD

882C, but found it unnecessary because

APTA had developed its Guidelines by

adapting MIL–STD 882B to the transit

industry.

While most commenters favored the

use of the APTA Guidelines, one

commenter strongly favored the use of

MIL–STD 882B or 882C to develop the

system safety program standard. This

commenter noted that:

[T]he discussion of the Proposed Rule

indicates that the APTA requirement is

equivalent to MIL–STD 882B, and that the

APTA standard can therefore be used in

place of the MIL–STD. It should be noted that

the APTA standard is not equivalent to the

military standard. There are significant and

important philosophical differences between

the two documents. The most important of

the differences is that MIL–STD 882 specifies

that system safety be started very early in the

project, that it must be involved in the design

of the system, that a specific order of

precedence must be followed to increase

safety, and that risk assessments must be

based upon probability and severity. The

APTA standard emphasizes the use of system

safety for operational systems after they have

been completed and put into service,
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations 67037

indicates that system safety is mostly

concerned with operations and procedures,

and implies that safety can be ‘audited’ into

a system. While the APTA Manual does

mention that system safety is needed during

the design phases, the emphasis is clearly on

later phases * * * . Another potential

concern with the APTA Manual is that it

describes the audit process in terms of

determining whether or not the transit

agency is following its system safety

program, but is silent on the issue of

determining whether or not that program can

be expected to accomplish its goals. While

this is appropriate for an organization such

as APTA, it may not be appropriate for an

Oversight Agency. It may be important for

the Oversight Agency to review the Transit

Agencies’ plans with an eye toward trying to

determine whether or not the plan is likely

to result in an effective system safety

program * * * .

This commenter also noted that MIL–

STD 882C incorporates changes

concerning ‘‘Software Safety.’’

FTA Response. This commenter has

certainly made a convincing case for the

adoption of MIL–STD 882B or 882C,

and we emphasize that, although we

have adopted the proposal as published

in the NPRM, we have not precluded

the use of either of those Military

Standards. Instead, we have adopted the

APTA Guidelines as a minimum

standard the oversight agency must

meet or exceed; because the APTA

Guidelines were derived from MIL–STD

882B, an oversight agency that bases its

system safety program standard on

either MIL–STD 882B or 882C should

meet or exceed the requirements of the

APTA Guidelines. Moreover, by

adopting the APTA Guidelines as a

minimum standard, we accomplish two

objectives: establishing a nation-wide

baseline standard and giving a State

more flexibility and control in

developing its own program.

We do, in fact, urge the oversight

agency to assess the APTA Guidelines

in relation to MIL–STD 882B or 882C

and decide which one best addresses its

needs. We believe that an oversight

agency that uses either MIL–STD 882B

or 882C as a basis for its system safety

program standard is well served, and we

urge an oversight agency to at least

consider those Military Standards in

developing its own oversight program.

Although we have not mandated the

use of MIL–STD 882B or 882C, we have

addressed one of the concerns of this

commenter, by adding a provision in the

rule to require the oversight agency to

determine the efficacy of the transit

agency’s system safety program plan

and require the transit agency to update

it, if necessary.

This commenter also commented that

the MIL–STD 882C’s section on

‘‘Software Safety’’ is ‘‘of critical

importance to modern transit systems’’;

we recommend that both the oversight

agency and the transit agency assess

whether that section meets the safety

needs of the ‘‘rail fixed guideway

system.’’

C. System Safety Program Plan—the Six

Factors.

As mentioned above, under the NPRM

the transit agency was to develop a

system safety program plan that

complied with the oversight agency’s

system safety program standard. In the

preamble to the NPRM, we suggested

that the system safety program plan

should: (1) be endorsed by top

management; (2) establish the safety

goals and objectives of the transit

agency; (3) identify safety issues; (4)

require cooperation within the transit

agency to address the identified safety

issues; (5) recognize that achieving

safety goals and objectives may require

the involvement of entities other than

the transit agency; and (6) provide a

schedule for the implementation and

revision of the system safety program

plan. We then asked for comment on

whether we should require these six

factors in the final rule.

Only seven commenters responded to

this issue, and none of them opposed

the general concept of the six factors.

Several of the commenters noted,

however, that all six factors are

included in the APTA Guidelines,

making them unnecessary if FTA

incorporates the APTA Guidelines into

the final rule.

FTA Response. Since the six factors

are included in the APTA Guidelines,

which we have incorporated by

reference into the final rule, the

oversight agency must require the

transit agency to address all six factors

in its system safety program plan.

D. Planning, Design, and Construction.

In the preamble to the NPRM, we

noted that section 5330 may be read

To apply only to the operation of rail fixed

guideway systems, which would lead to the

conclusion that the NPRM covers only those

rail fixed guideway systems already in

existence, or other systems only when they

commence operations. On the other hand, if

we were to interpret section [5330] to apply

during the planning, design, and

construction phases of a system, we would

then have to decide when the State would be

required to comply with this proposed rule.

This would be especially difficult for those

States where systems are in the planning

stage, which can be a lengthy process, and it

would be difficult to specify at what point

the oversight agency would have to be

established.

Of the commenters that responded to

this issue, only a few favored covering

the pre-operational phases of the rail

fixed guideway system’s life cycle. One

of these commenters stated that ‘‘[t]o

ensure that the design of facilities and

systems results in optimal safety, the

system safety approach has been shown

to be highly effective and cost efficient.’’

The vast majority of the commenters

were against covering the planning,

design, and construction phases in this

rule, stating in effect, that other

mechanisms, i.e., FTA’s Program

Management Oversight (PMO) process

and the construction contract itself can

ensure that safety is planned, designed,

and constructed into new rail fixed

guideway systems.

FTA Response. Although we agree

that a system safety program plan

should cover the planning, design, and

construction of a ‘‘rail fixed guideway

system,’’ the language of section 5330

leads us to conclude that it covers only

operating systems or systems about to

commence operations. Section 5330

directs a State to establish and carry out

a ‘‘safety program plan for each [rail]

fixed guideway mass transportation

system in the State,’’ never mentioning

the planning, design, and construction

phases of a system’s life cycle.

Moreover, because of the lengthy

planning, design, and construction

phases of a system’s life cycle, we

believe that it is impractical, especially

for a State planning its first ‘‘rail fixed

guideway system,’’ to require that a

State create a bureaucracy years before

a single passenger is served, when there

are other mechanisms available to

ensure that safety is designed, planned,

and constructed into a new ‘‘rail fixed

guideway system.’’ This does not mean,

however, that a State is precluded from

creating an oversight agency that

oversees the planning, design, and

construction of a ‘‘rail fixed guideway

system.’’ On the contrary, we encourage

the States to do so, although we do not,

under this rule, require it. Also, we

encourage the oversight agencies to

work with PMOs to ensure that safety is

designed, planned, and constructed into

new ‘‘rail fixed guideway systems.’’

E. Accountability Factor.

While drafting the NPRM, we were

concerned that the development of a

State Safety Oversight Program would

not be complete without some

mechanism to ensure transit agencies’

commitment to safety. To

‘‘institutionalize’’ this commitment and

to meet the requirements of section

5330, we developed the ‘‘accountability

factor,’’ in which the oversight agency

would require a transit agency to
67038 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations

identify tasks critical to safety and the

persons responsible for performing

those tasks. This concept was derived

from section 207 of MIL–STD 882B,

which concerns the ‘‘identification of

safety-critical equipment and

procedures.’’ The ‘‘accountability

factor’’ was intended to help the transit

agency identify and correct problems.

Most of the commenters on this issue

opposed the inclusion of the

‘‘accountability factor’’ in the rule

because, in their opinion, it would not

achieve its intended purpose of making

systems safer. For instance, one

commenter stated such a requirement

would allow the oversight agency not

just to oversee but to micromanage the

transit agency; another claimed that it

would become a ‘‘paperwork’’ exercise

and actually hinder the development of

safety practices and procedures. Yet

another commenter stated that it would

be used to ‘‘fix’’ blame. One commenter

argued that the ‘‘accountability factor’’

was a ‘‘misapplication’’ of section 207 of

MIL–STD 882B, which, according to

this commenter, was developed to verify

compliance with safety equipment and

procedures, an activity distinct from

system safety program activities. Last,

some commenters indicated that the

‘‘accountability factor’’ was not

necessary under the rule because a welldrafted system safety program plan

incorporates accountability into it.

Although the NTSB favored the

inclusion of the ‘‘accountability factor’’

in the final rule, it did not elaborate on

its reasoning.

FTA Response. The final rule does not

include the ‘‘accountability factor’’

because on balance, we have concluded

that the oversight agency is best suited

to meet the directives of section

5330(c)(1) to ‘‘establish[ ] * * * lines of

authority [and] levels of responsibility

and accountability * * *’’ for the rail

fixed guideway system. We note that the

APTA Guidelines checklist numbers 1

through 5 stress the development of a

concept similar to the proposed

‘‘accountability factor.’’

F. EPA and OSHA Requirements.

We asked whether the system safety

program plan should address matters

covered by the Occupational Safety and

Health Administration (OSHA) and the

Environmental Protection Agency

(EPA). Four argued that it should; three

were opposed. Those in favor supported

a ‘‘comprehensive approach’’ to safety

in which various safety issues or

‘‘disciplines’’ are integrated for a total

prevention effort. Those in opposition

were concerned about creating

overlapping jurisdiction between the

oversight agency and the State agency

with authority to enforce the EPA and

OSHA laws and regulations.

FTA Response. By adopting the APTA

Guidelines, which address OSHA and

EPA matters in System Safety Checklist

numbers 19 and 20, respectively, we

have required that these matters be

included in the system safety program

plan. Although this allows the

possibility of jurisdictional conflicts

among State agencies, the benefits of the

oversight agency’s adopting a total

approach to safety outweigh this

possibility. Moreover, a State can plan

to reduce or eliminate any duplicative

jurisdiction between the oversight

agency and any other State agency with

jurisdiction over EPA and OSHA

matters.

G. Security.

In the preamble to the NPRM, we

asked whether the system safety

program plan should address security

matters, and if so, what specifically

should be included. Many commenters

responded to this question, most

negatively; some contended that

security matters should be handled by

law enforcement personnel and not by

transit safety professionals, others

opined that requiring the system safety

program plan to address security

matters is outside the scope of section

5330, and others stated that whether

transit security matters should be

included in the system safety program

plan should be decided by State and

local transit officials and not mandated

by the Federal government.

More particularly, one commenter

noted that ‘‘security is a separate issue

which requires separate treatment,

separate techniques, separate concerns,

and separate disciplines.’’ This

commenter continued:

[A]lthough, many times the public may

perceive their safety as being ‘freedom from

assault or attack from other individuals’,

normally professionals in the industry define

safety in association with unintentional

events or conditions (accidents), whereas,

security is defined as being associated with

intentional acts (usually illegal acts). The

causes and the control measures for these

two situations (safety and security) are

entirely different * * *. One good reason for

keeping these separate is the different type of

management required. Typically, effective

management of security requires law

enforcement type management philosophies,

whereas effective management of safety

requires entirely different (and sometimes

opposite) kinds of thinking. Management of

these two functions must be separated,

because of the different skills, philosophies,

management styles, and kinds of managers

required.

Other commenters noted another

important difference between safety

procedures and security measures:

Safety procedures, policies, and

processes can be made public and still

be effective, whereas security measures,

to be effective, must be kept

confidential. Thus, these commenters

reasoned, security measures should not

be included in a publicly available

document, such as a system safety

program plan.

The commenters in favor of requiring

the system safety program plan to

address security matters focused on the

similarities between security measures

and safety issues. Most notably, these

commenters stated, safety and security

procedures are both forms of risk

management; ‘‘[s]afety is the

management of the risk to persons and

property from accidental or negligent

loss * * [while] security is the

management of the risk to persons and

property from criminal acts.’’

Last, some commenters contended

that emergency planning and response

procedures were the same for both

safety and security events. Four

commenters recommended that FTA

include security only when it relates to

emergency planning and response.

FTA Response. Because we agree with

the commenter who noted that safety

and security are both forms of risk

management and because of recent

terrorist acts, we have decided to

require the inclusion of security

considerations in the system safety

program plan. In response to another

commenter, however, we have added a

provision to the rule that will allow the

security portion of the system safety

program plan to be barred from public

disclosure.

We disagree, however, with the

argument that Congress did not intend

section 5330 to include security. Section

5330(c)(1) states that ‘‘[a] State meets

the requirement of this section if the

State—establishes and is carrying out a

safety program plan for each [rail] fixed

guideway mass transportation system in

the State * * *’’ [emphasis added].

According to Webster’s Third New

International Dictionary, ‘‘safety’’ means

‘‘the condition of being safe; freedom

from exposure to danger, exemption

from hurt, injury, or loss,’’ whereas

‘‘security’’ means ‘‘the quality or state of

being secure: as (a) freedom from

danger: safety.’’ It seems clear, therefore,

that the meaning of safety encompasses

the meaning of security. Moreover,

according to the System Safety Glossary

published in 1985, by the

Transportation Safety Institute ‘‘safety’’

is defined as ‘‘[a] reasonable degree of

freedom from those conditions that can

cause injury or death to personnel,

damage to or loss of equipment or
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations 67039

property; freedom from danger’’; this

would certainly cover intentional acts.

Similarly, according to the Transit

Security Program Planning Guide

recently published by the FTA,

‘‘security’’ means ‘‘freedom from

intentional danger,’’ while ‘‘safety’’

means ‘‘freedom from danger.’’

Therefore, section 5330 can be

interpreted, and we do, to require the

inclusion of security in the system

safety program plan.

Other commenters indicated that

security should not be included in the

system safety program plan because

safety and security are as different from

each other as apples from oranges. One

transit agency presented safety and

security as two different disciplines

requiring two different approaches and

two different kinds of trained personnel.

Thus, this commenter reasoned, the

system safety program plan should not

address security matters. In our view,

however, safety and security risks are

interrelated, especially from the

perspective of transit passengers. We

agree with the commenter who wrote:

[A]lthough the disciplines have been

separated in their normal application, there

is a trend for a united knowledge base of

safety with security so that any type of

hazard is examined for its implication as a

security type of problem. As with other

disciplines, safety and security requirements

may be at odds requiring careful analysis of

the potential hazards and threats against the

transit system and the development of

appropriate trade-off studies. The Transit

Safety Professional needs to have security

analyses in the curriculum of study and

certification to ensure awareness of the issues

and concerns related to security. In addition,

security systems themselves require safety

analyses to ensure that they are properly

covered.

We also disagree with the commenter

who recommended that only emergency

response procedures be included in the

system safety program plan. We note

that the APTA Guidelines already

contain a provision concerning

emergency preparedness. While

emergency preparedness is itself a

valuable activity, it does not prevent

either intentional or unintentional acts

from occurring. An emergency

preparedness plan is used to develop a

response to an event, while the overall

system safety program plan develops

procedures to reduce the likelihood of

either intentional or unintentional

events from occurring.

H. Biennial Safety Reviews

In the proposed rule, the oversight

agency would comprehensively review,

on-site, the rail fixed guideway system’s

safety practices every two years. Most

commenters objected to this provision.

Some maintained that a review every

two years was unnecessary and

burdensome; in support of their

contention, they mentioned APTA’s Rail

Safety Audit Program, in which auditors

employed by APTA review a rail fixed

guideway system’s safety practices

every three years. They maintain that a

three-year review schedule adequately

addresses safety needs. One commenter

indicated that APTA adopted a threeyear schedule to give rail fixed

guideway systems time to take

corrective and other recommended

actions. Another commenter, a State

agency already overseeing rail fixed

guideway systems, stated that it does

not independently conduct on-site

reviews, but instead observes the APTA

auditors review a system; this

commenter concluded that this

approach works well for it and the rail

fixed guideway systems under its

jurisdiction. Some commenters urged us

to specifically allow oversight agencies

to use the APTA Rail Safety Audit

Program.

Other commenters favored a flexible

approach, in which the oversight and

transit agencies schedule reviews

appropriate for the age, size, and

complexity of the rail fixed guideway

system. One commenter recommended

that we specify the exact requirements

of a safety review.

FTA Response. Agreeing generally

with the commenters, we have made the

rule more flexible. For instance, the rule

requires the oversight agency to review

the transit agency’s safety practices at

least every three years instead of every

two, as we had proposed. The oversight

agency may conduct these reviews more

frequently if it chooses. Moreover, the

rule expressly allows the oversight

agency to use a contractor to conduct

the required review, which allows the

oversight agency to use the APTA Rail

Safety Audit Program or any other

qualified contractor to conduct safety

reviews.

Although one commenter had urged

us to define specifically the

requirements of a safety review, we have

declined to do so. Instead, the oversight

agency should determine for itself,

based on the age, size, and complexity

of the individual rail fixed guideway

system within its jurisdiction, the exact

extent of the review; however, it must

be comprehensive, i.e., cover all matters

included in the transit agency’s system

safety program plan.

The process used by the California

Public Utilities Commission (CPUC)

illustrates how the rule can be flexible.

Instead of using its staff to conduct

comprehensive safety reviews, CPUC

staff accompany and observe APTA

auditors who perform a comprehensive

safety audit. This system allows CPUC

personnel to cover the daily operation

and maintenance activities of the rail

fixed guideway system and conduct indepth reviews of particular activities on

an ‘‘apparent need’’ basis. For instance,

CPUC’s staff conducted in-depth

reviews of track maintenance practices

at five different rail fixed guideway

systems. In short, an oversight agency

could conduct its own safety reviews,

contract them out completely, or adopt

an approach similar to CPUC’s, in

which both a comprehensive safety

review and an in-depth review of a

particular system component is

conducted by another contractor or

oversight agency personnel.

One commenter recommended that

the extent and frequency of safety

reviews depends on the particular phase

of the rail fixed guideway system’s

lifecycle. This commenter

recommended that a safety audit be

performed during the preliminary

engineering phase to assure properly

defined criteria, during the final design

stage to assure that the criteria has been

included in the specifications, during

pre-revenue testing to assure the

systems have been properly installed

and the system tested and safety

certified, then every two to three years

when the system is operational, and

more frequently if there are serious

problems. We agree with this

commenter, although we have not

adopted his suggestions formally in the

rule. Instead, we strongly urge oversight

agencies to consider these kinds of

factors when establishing a safety

review process.

I. Safety Audits

FTA proposed to require the transit

agency to conduct a ‘‘safety audit,’’ a

‘‘methodical, ongoing, internal

examination of a transit agency’s safety

practices to determine whether they

comply with the policies and

procedures required under the transit

agency’s system safety program plan.’’

The results of these safety audits were

to be compiled every six months by the

transit agency into a report to the

oversight agency, which would review

those reports as part of its monitoring

function required under section 5330.

Nineteen commenters responded to

this proposed safety audit process, with

most of them objecting that such audits

amount to a ‘‘paperwork exercise’’ that

could be detrimental to the safe

operation of a rail fixed guideway

system. They argued that the ‘‘safety

audits’’ and the ‘‘biennial reviews’’ were

redundant and that auditing

continuously was not necessary to
67040 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations

ensure the safe operation of a rail fixed

guideway system. Some of these

commenters recommended that FTA

adopt a system of random periodic

checks similar to the APTA review

process; others recommended that the

oversight agency set the timeframe for

safety audits by the transit agency. Still

others recommended that the frequency

of safety audits be linked to the age,

type, and speed of the system,

maintaining that different rail fixed

guideway systems have different safety

auditing needs.

FTA Response. FTA had intended the

‘‘safety audit’’ process to be used in

addition to the ‘‘Internal Safety Audit

Process’’ in checklist number 9 of the

APTA Guidelines, which apparently

confused the commenters. To clarify our

intent, we have withdrawn the proposed

definition, ‘‘safety audit,’’ and now

require the oversight agency to develop

a process that complies with APTA’s

‘‘Internal Safety Audit Process.’’

Although we make this change, we

nevertheless encourage transit and

oversight agencies to view safety and

the safety auditing process as a routine,

daily matter. As noted in the APTA

Guidelines, ‘‘[t]he Internal Safety Audit

Process * * * requires constant

attention and activity.’’

To ensure that both transit and

oversight agencies view the safety

auditing process as a ‘‘constant

activity,’’ we have retained the

requirement for the transit agency to

complete and submit safety auditing

reports to the oversight agency, a

requirement in the APTA Guidelines,

which states that audit reports are to be

used as a ‘‘management tool.’’ FTA had

proposed semi-annual reports, which

most commenters objected to as a

‘‘paperwork exercise.’’ In response, we

have changed the reporting time period

from semi-annually to annually to

reduce the paperwork burden.

J. Accident

To focus oversight agency accident

investigations on serious events that

may show a systemic safety problem,

FTA proposed to define ‘‘accident’’ as

‘‘any event involving the operation of a

rail fixed guideway system resulting in:

(1) [D]eath directly related to the event;

(2) [i]njury requiring hospitalization

within twenty-four hours of the event;

(3) [a] collision, derailment, or fire

causing property damage in excess of

$25,000; or (4) [a]n emergency

evacuation.’’ The vast majority of

commenters opposed this definition and

recommended numerous ways to

change it.

For instance, several commenters

requested that FTA limit the definition

to those events involving revenue

service operations, thus excluding

incidents occurring in rail yards.

According to the commenters, these

kinds of incidents are covered by OSHA

rules; eliminating them from the rule,

these commenters reasoned, would

avoid duplicative and perhaps

conflicting jurisdiction between the

oversight agency and the State and

Federal agencies responsible for

enforcing OSHA regulations.

Some commenters recommended that

any incident involving trespassers or

employees be excluded from the

definition. These commenters

maintained that events involving

trespassers would not necessarily

indicate a systemic safety problem; in

other words, it is impossible to protect

against trespassers. Several commenters

maintained that events involving

employees should not be covered to

avoid duplicative jurisdiction between

the oversight agency and the State and

Federal agencies regulating the

workplace.

Other commenters recommended that

FTA exclude certain kinds of personal

injuries from the definition, stating that

it is difficult, if not impossible, for a

transit agency to monitor every slip,

trip, or fall that occurs at a rail fixed

guideway system. They further maintain

that these kinds of injuries are not

sufficiently serious to trigger an

investigation by the oversight agency.

Still other commenters noted that, in

most cases, a transit agency would be

unable to determine whether a person

was hospitalized as a result of the

injury. Transit agency personnel

operating in large metropolitan areas

would be forced to contact dozens of

hospitals, a task that would strain its

resources; moreover, many hospitals do

not release this kind of information to

the public.

Several of these commenters

recommended that FTA define accident,

in part, as any injury in which a person

is treated at the scene or is transported

from the scene by medical personnel.

This change would ease the

administrative burden on the rail fixed

guideway system, these commenters

contended.

Many commenters strongly objected

to the $25,000 property damage

threshold, with most of them indicating

that property damage estimates are

subjective and become obsolete over

time; others contended that $25,000 was

too low. Some recommended that FTA

annually adjust the dollar amount for

inflation, and others recommended that

the dollar amount be set by agreement

between the oversight and transit

agencies.

Several commenters recommended

that FTA define an emergency

evacuation, with one proposing that it

be limited to circumstances in which

emergency doors and exit routes are

used, thus excluding instances when

passengers are asked to leave a train

disabled in a station.

FTA Response. In light of the

comments, FTA has made several

changes to the definition of accident.

For instance, we have limited the

definition to only those events that

occur during the revenue service

operation of the rail fixed guideway

system, which eliminates from the rule

any injuries or deaths to workers in rail

yards. We made this change, not

because these are unimportant events,

but to avoid overlapping jurisdiction

among State agencies. We do, however,

encourage the oversight agency to

establish a relationship with the State

agency having jurisdiction over these

matters and share information, thus

making the workplace safer for rail fixed

guideway system employees.

We disagree with commenters asking

us to exclude incidents involving

trespassers from the rule. Although we

sympathize with the perspective of

transit agencies, we believe that any

death or injury requiring immediate

medical treatment away from the scene

of the event, which occurs while the rail

fixed guideway system is in revenue

service, should be investigated by the

oversight agency.

We agree with those commenters who

objected to the hospitalization

requirement and have changed the rule

to state that an accident has occurred if

a person has been injured and

‘‘immediately receives medical

treatment away from the scene of the

accident.’’ This language is used in

FTA’s drug and alcohol rules, as well.

Although several commenters asked

us to remove property damage dollar

thresholds, we did not do so. Instead,

we have raised the dollar threshold to

$100,000, which should reduce the

number of accidents involving property

damage.

Last, we have removed the portion of

the definition concerning emergency

evacuations. In many instances, a

serious event involving the evacuation

of a mass transit vehicle also will

involve a death, an injury requiring

immediate medical treatment away from

the scene, or more than $100,000 in

property damage, any of which, by

themselves, will trigger an oversight

agency investigation. Hence, by making

this change we have focused an

oversight agency’s resources on serious

events involving the emergency

evacuation of a mass transit vehicle.
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations 67041

K. Hazardous Condition

FTA proposed to define a ‘‘hazardous

condition’’ as ‘‘any condition which

may endanger human life or property,’’

and ‘‘unacceptable hazardous

condition’’ as ‘‘a hazardous condition

determined to be an unacceptable

hazardous condition using the hazard

resolution matrix of the ‘Rail Safety

Audit Manual’ published by APTA.’’

FTA further proposed to require the

oversight agency to investigate only

unacceptable hazardous conditions,

whereas the transit agency was to

correct or eliminate any hazardous

condition.

Several commenters were confused by

these two definitions and one

maintained that the definitions were

understandable only in conjunction

with the APTA Guidelines checklist

number 7.

Another commenter argued that FTA

should not adopt the APTA Guidelines’

hazard classification process. This

commenter stated that

[T]he Hazard Resolution Matrix contained

in the APTA guidelines is an inadequate

indicator of when an investigation should be

triggered. As an example, it is well-known

that currently-operating modern escalators

frequently cause minor injuries to patrons

(particularly children). Following the APTA

guidelines, one would categorize the hazard

associated with an operating escalator in

Category III (marginal-minor injury).

Furthermore, since escalators are usually

operating more often than not, the hazard

exists all the time the escalator is operating.

Again following the APTA guidelines, the

hazard probability would be in Category A—

frequent-likely to occur frequently

(individual); continuously experienced (fleet/

inventory). Under the Hazard Resolution

Matrix of the APTA guidelines, this would be

a Category III–A, which would be labeled

‘unacceptable.’ Following the reasoning

proposed in the NPRM, all escalators would

continuously have to be corrected or

eliminated by all transit agencies, and all

escalator accidents investigated by the

oversight agency. Since escalators cannot be

corrected (at least so far no one has been

successful in creating an escalator that

doesn’t have these hazards), all escalators

would have to be eliminated from transit

properties.

In contrast, another commenter

supported the use of the APTA

Guidelines Hazard Resolution Matrix

because, according to this commenter, it

has been adopted and practiced by more

than 95 percent of the affected systems.

Several commenters objected to FTA’s

proposal to require transit agencies to

‘‘correct or eliminate any hazardous

condition,’’ which they characterize as

an ‘‘impossible chore.’’ In the words of

one commenter, ‘‘[i]f every transit

agency was required to eliminate every

condition that may cause minor injury

* * *, all of its resources would be

extended in attempting to eliminate

these potential minor threats, with little

resources left to run the transit system.’’

One commenter recognized this

problem also, and suggested that FTA

require that hazardous conditions be

corrected, eliminated, or controlled.

One commenter maintained that the

oversight agency should not be required

to investigate any hazardous condition.

FTA Response. Although FTA has

made some changes to the rule, we have

not changed the definitions. The terms

‘‘hazardous condition’’ and

‘‘unacceptable hazardous condition’’

must be read in conjunction with the

APTA Guidelines, particularly with the

hazard resolution process, checklist

number 7. To identify hazards, FTA has

mandated the use of this particular

process by transit agencies, even if a

transit agency has used MIL–STD 882B

or 882C to develop its system safety

program plan. We have mandated this

process, despite some commenters who

opposed its adoption, because it is

widely used and accepted throughout

the transit industry.

Also, the rule requires the oversight

agency to investigate unacceptable

hazardous conditions as well as

accidents. Although at least one

commenter opposed requiring the

oversight agency to investigate

unacceptable hazardous conditions,

section 5330(c)(2)(B) requires the

oversight agency to ‘‘investigate

hazardous conditions.’’ To focus State

resources on serious safety issues, FTA

has interpreted section 5330 narrowly,

thus requiring an oversight agency to

investigate only ‘‘unacceptable

hazardous conditions.’’

We agree with the commenters who

maintained that not all hazardous

conditions can be corrected or

eliminated. Risk cannot be taken out of

life. Therefore, we require a transit

agency to correct or eliminate any

hazardous condition if possible, and if

not, the transit agency must either

minimize or control it. For instance, one

commenter noted that escalators are

hazardous conditions, which can be

corrected only by eliminating the

escalator. Under this rule, the transit

agency is not required to eliminate

escalators, but it is required to minimize

or control the risks associated with

escalators. A transit agency can take one

or more of several actions to minimize

these risks, such as installing an

emergency shut-off switch, retrofitting

the escalator with additional safety

devices, posting instructions on how to

avoid accidents on escalators, or

developing educational programs for

children on how to properly use

escalators. Many transit agencies have

addressed the safety issues of escalators,

but we urge them to consider other

measures to make escalators safer,

especially for children.

L. Investigations

FTA proposed to require the oversight

agency to develop its own investigation

procedures and to investigate accidents,

except those being investigated by the

National Transportation Safety Board

(NTSB), and all unacceptable hazardous

conditions.

Twenty-seven commenters responded

to issues arising from this proposal.

Although one commenter stressed that

the oversight agency should not conduct

any investigations, most commenters

focused on the oversight agency’s role in

investigating an ‘‘accident’’ or

‘‘unacceptable hazardous condition.’’

The vast majority of these commenters

maintained that the oversight agency

should not conduct its own

independent investigation, but should

focus on the process used by the transit

agency in conducting investigations.

These commenters noted that the transit

agency must be responsible for

operating its own system; an

independent investigation by the

oversight agency may implicitly usurp

the authority of the transit agency over

safety and other operational matters,

according to these commenters. Others

insisted that although the oversight

agency’s primary responsibility was to

ensure that the transit agency properly

conducted investigations, it should

nevertheless be authorized to investigate

extraordinary events. One commenter

maintained that the oversight agency

should not investigate an ‘‘accident’’ or

‘‘unacceptable hazardous condition’’

unless the transit agency’s investigation

is inadequate.

FTA Response. Despite the opinion of

at least one commenter, the oversight

agency is required under section 5330 to

investigate accidents and hazardous

conditions. As discussed above, we

proposed to define ‘‘accident’’ in a

manner to focus the oversight agency’s

investigation on serious events of a

systemic nature. Similarly, instead of

proposing to require the oversight

agency to investigate all ‘‘hazardous

conditions,’’ we proposed that it

investigate only ‘‘unacceptable

hazardous conditions.’’ We have not

changed this basic scheme.

Moreover, we believe that our

proposal was misunderstood, and we

seek now to clarify the role of the

oversight agency in conducting

investigations. The oversight agency is

not only responsible for developing its

own investigatory procedures, it is
67042 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations

responsible for determining how it will

investigate. An oversight agency may

contract for this service; some may elect

to use APTA’s Panel of Inquiry, others

may choose to use other experts. The

oversight agency may allow the transit

agency to conduct some or all

investigations. The oversight agency

may choose to investigate all

‘‘accidents’’ and ‘‘unacceptable

hazardous conditions’’ or investigate

some and contract for the investigation

of others. The rule is flexible in this

regard, just as we had proposed in the

NPRM. Although the examples set forth

above are not exhaustive, ultimately,

unless the NTSB is conducting an

investigation, either the oversight

agency or an entity acting on its behalf

must investigate ‘‘accidents’’ and

‘‘unacceptable hazardous conditions.’’

We do, however, encourage the

oversight agency to either directly or by

contract conduct independent

investigations. Moreover, we disagree

strongly with commenters who maintain

that the oversight agency should focus

on the process used by the transit

agency to conduct investigations. The

purpose of this rule is to ensure that a

rail fixed guideway system operates

safely and that the systemic causes of

‘‘accidents’’ and ‘‘unacceptable

hazardous conditions’’ are addressed;

focusing on process in this context,

therefore, is misplaced. Rather, the

focus of the oversight agency should be

to assist the transit agency in preventing

‘‘accidents’’ and ‘‘hazardous

conditions.’’

M. Confidentiality of Oversight Agency

Investigation Reports

Several commenters to the ANPRM

requested that we include a provision in

the rule barring the discovery or the use

in evidence of any investigative report

compiled as a result of this rule. In the

NPRM, we noted that section 5330 did

not specifically address this matter, and

hence, we doubted that we could make

such a mandate. Nevertheless, we asked

whether we should adopt a provision

which would require that the oversight

agency investigation reports be kept

confidential.

Almost every commenter favored the

adoption of such a provision. One

commenter wrote:

[T]he investigations at rail fixed guideway

systems are often confidential * * * and thus

they are not subject to discovery or public

disclosure. If the information gathered by the

states becomes a public document, then the

FTA will be building into this regulation a

serious conflict between the state agencies

and the [rail] fixed guideway systems. In

order to ensure better gathering of

information by the states, and to maintain

unreserved cooperation with the local transit

systems, it is strongly recommended that the

information gathered by the states must be

protected from disclosure.

Another commenter wrote ‘‘[w]e

submit that a discovery exemption is

critical to the efficient operation of the

oversight agency, as it would protect the

agency’s limited staff and resources

from the inundation of subpoenas and

other discovery requests.’’ Yet another

commenter wrote that

[The rail fixed guideway system] believes

that FTA should provide protection for

Attorney-Client privilege under the proposed

rule to include investigative materials and

materials pertaining to ‘hazardous condition’

discussions or findings by the State oversight

agency. If FTA does not have the statutory

authority to provide such protection, it

should require the States to do so. The loss

of [the rail fixed guideway system’s]

Attorney-Client privilege over such

documents would have a serious negative

economic impact on third party litigation.

The remaining commenters

maintained that although the issue is an

important one, FTA should remain

silent on it.

FTA Response. FTA agrees strongly

that the oversight agency investigation

reports should be kept confidential;

thus, we have added a provision to the

rule permitting a State to require that

these reports be kept confidential, and

we encourage strongly that the State

authorize the oversight agency to do so.

N. Certified Transit Safety Professional.

FTA proposed to require the use of

Certified Transit Safety Professionals

primarily in response to comments to

the ANPRM and related public hearings,

which reflected concern throughout the

transit industry about the expertise

necessary to carry out an effective

oversight program. These commenters

maintained that an effective oversight

program could not be achieved without

the use of certified safety professionals.

In response to these comments, the

NPRM proposed to require both the

oversight agency and the transit agency

to use the services of a Certified Transit

Safety Professional, either from within

their own organizations or under

contract, to comply with the

requirements of the rule. A Certified

Transit Safety Professional was defined

as one who had ‘‘successfully

completed the Safety Professional

Certification requirements established

by the Board of Certified Safety

Professionals, * * * or, a registered

professional engineer in system safety.’’

FTA also sought comment on whether it

should require a Certified Transit Safety

Professional to have a minimum number

of years of experience in transit safety.

Forty-seven comments were received

on this matter, which was among the

most controversial proposals in the

NPRM. Although most commenters

opposed the inclusion of this concept in

the final rule, some recommended

changes to the definition of certified

transit safety professional. For instance,

several commenters noted that

organizations other than the Board of

Certified Safety Professionals certify

safety professionals, such as the World

Safety Organization or the Federal

Railroad Administration. Others

recommended that the rule recognize

experience equivalent to the training

required by the Board of Safety

Professionals. One commenter

recommended that, in addition to

certification, a Certified Transit Safety

Professional be required to have a

minimum number of years of

experience.

Several commenters opposing this

proposal maintained that the Board of

Certified Safety Professionals does not

certify professionals in transit safety.

The Board of Safety Professionals,

however, did not oppose this proposal.

Instead, they recommended that FTA

require the certified transit safety

professional’s certification to be current.

Several commenters noted that States do

not certify professional engineers in

system safety, although one commenter

noted that the Board of Certified Safety

Professionals 1993–1994 Directory

listed 200 Safety Professionals certified

in system safety.

One commenter who opposed this

proposal nevertheless recommended

that FTA require safety professionals to

complete FTA’s Rail System Safety

Course. Another commenter

recommended that a peer group develop

guidelines concerning the experience

and training for transit safety

professionals, which a transit agency

could adopt. Other commenters objected

to the proposal stating that such a

training requirement would be too

expensive.

FTA Response. In response to the

overwhelming comments opposed to

this proposal, FTA has removed the

Certified Transit Safety Professional

provision from the rule. We do,

however, urge the States to develop

their own criteria to ensure that both the

transit and oversight agencies are using

qualified professionals under this rule

to ensure the safe operation of rail fixed

guideway systems. In this regard, we

recommend that safety professionals, at

a minimum, have transit safety

experience and complete the courses at

the Transportation Safety Institute (TSI)

sponsored by FTA applicable to rail

transit systems. TSI offers the following
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations 67043

courses: System Safety, Accident

Investigation, System Security, and

Emergency Management. FTA has

provided training assistance to the

transit industry in safety since 1976,

and this program will be a major

contribution to State Safety Oversight.

Moreover, we urge States to require

safety employees to be certified by the

Board of Certified Safety Professionals,

the World Safety Organization, or other

comparable organization; safety

professionals should possess a certain

level of experience as well.

III. Section-by-Section Analysis

Please note that issues addressed in

the Section-by-Section Analysis may

also be discussed in the Discussion of

the Comments.

Subpart A—General Provisions

A. Purpose. (§ 659.1)

This section explains that FTA is

implementing the requirements of 49

U.S.C. § 5330, which requires a State to

establish an agency to oversee the safety

of rail fixed guideway systems. This rule

directs the oversight agency to develop

a system safety program standard and to

require the transit agency to develop a

system safety program plan that

complies with the system safety

program standard. In addition, the

oversight agency must conduct safety

reviews and investigations and ensure

that the transit agency has developed

and implemented a system safety

program plan that complies with this

rule and is effective.

B. Scope. (§ 659.3)

This section explains that the rule

applies only to States with rail fixed

guideway systems that are not regulated

by the FRA.

C. Definitions. (§ 659.5)

1. Accident

An accident triggers an investigation

by the oversight agency or its agent, and

is defined as an event that occurs when

the rail fixed guideway system is in

revenue service and an individual dies

or is injured and immediately receives

medical treatment away from the scene;

or a collision, derailment, or fire results

in $100,000 in property damage.

Injuries, deaths, or property damage

that occur when the rail fixed guideway

system is not in revenue service are

excluded from the definition. Hence,

under the rule, the oversight agency or

its agent is not required to investigate

these events, but may do so under its

own authority.

An ‘‘individual’’ means anyone,

including a passenger, trespasser,

employee, or other bystander.

2. APTA Guidelines

The ‘‘APTA Guidelines’’ means the

‘‘Manual for the Development of Rail

Transit System Safety Program Plans’’

published by the American Public

Transit Association on August 20, 1991.

3. Contractor

A ‘‘contractor’’ means an entity that

performs tasks required under this part

on behalf of the oversight or transit

agency. A transit agency may not be a

contractor for an oversight agency.

4. FTA

The ‘‘FTA’’ means the Federal Transit

Administration, an agency of the United

States Department of Transportation.

5. Hazardous Condition

‘‘Hazardous Condition’’ means a

condition that may endanger human life

or property. It encompasses

‘‘unacceptable hazardous conditions,’’

defined below.

6. Investigation

‘‘Investigation’’ means the process

used to determine the probable cause of

the ‘‘accident’’ or ‘‘unacceptable

hazardous condition.’’ It includes a

review by the oversight agency of the

transit agency’s determination of the

probable cause of an ‘‘accident’’ or

‘‘unacceptable hazardous condition.’’

An ‘‘investigation’’ may be conducted

by the oversight agency itself or by some

other entity acting on its behalf, or the

investigation may be conducted by the

transit agency. If the oversight agency

chooses the latter method it must, at a

minimum, review and approve the

transit agency’s findings of probable

cause of the ‘‘accident’’ or

‘‘unacceptable hazardous condition.’’

7. Oversight Agency

The agency designated by the State or

affected States to implement the

requirements of this part.

8. Rail Fixed Guideway System

‘‘Rail fixed guideway system’’ means

any light, heavy, or rapid rail system,

monorail, inclined plane, funicular,

trolley, or automated guideway that is

included in FTA’s calculation of fixed

guideway route miles or receives

funding under FTA’s formula program

for urbanized areas and is not regulated

by the Federal Railroad Administration.

9. Safety

‘‘Safety’’ means freedom from danger;

it includes freedom from unintentional

as well as intentional acts.

10. Safety Review

‘‘Safety review’’ means a

comprehensive review by the oversight

agency of the transit agency’s safety

practices. It includes an analysis by the

oversight agency of the efficacy of the

transit agency’s system safety program

plan and a determination of whether the

system safety program plan must be

modified, changed, or updated. The

safety review must be conducted at the

rail fixed guideway system.

11. Security

‘‘Security’’ means freedom from

intentional danger. Intentional danger

includes criminal acts such as

muggings, rapes, robberies, or terrorists

acts, such as bombings, releases of

poisonous gases, or kidnappings.

12. System Safety Program Plan

‘‘System safety program plan’’ means

the written document developed by the

transit agency in accordance with the

requirements of the oversight agency’s

system safety program standard.

13. System Safety Program Standard

‘‘System safety program standard’’

means the document developed by the

oversight agency that complies, at a

minimum, with the APTA Guidelines

and requires the rail fixed guideway

system to address the personal security

of its passengers and employees. It may

contain more requirements than the

APTA Guidelines. The transit agency

must comply with this document when

it develops its system safety program

plan.

14. Transit Agency

‘‘Transit agency’’ means the entity

operating the rail fixed guideway

system.

15. Unacceptable Hazardous Condition

An ‘‘unacceptable hazardous

condition’’ is a particular kind of

hazardous condition determined by

using the Hazard Resolution Matrix

contained in the APTA Guidelines at

checklist number 7.

D. Withholding of Funds for NonCompliance. (§ 659.7)

This section is taken from section

5330, which authorizes FTA to

withhold Federal funding from a State

or an urbanized area in the State. In

particular, FTA is authorized to

withhold up to five percent of an

affected urbanized area’s apportionment

if the State, in the opinion of FTA, is not

in compliance or making adequate

efforts to comply with the rule. The

sanctions for non-compliance do not

begin until September 30, 1997. In the

event of non-compliance with the rule,
67044 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations

the Administrator may withhold funds

until the State comes into compliance.

Subpart B—The Role of the State

A. Designation of Oversight Agency.

(§ 659.21)

This section directs the State to select

an agency to oversee the rail fixed

guideway system and prohibits the State

from selecting the transit agency to

perform this role. Paragraph (a)

concerns rail fixed guideway systems

that operate within only one State. In

these instances, the State must designate

a State agency to implement the rule. If

the State chooses, this paragraph allows

the State to designate an oversight

agency for each rail fixed guideway

system within the State. For instance, a

State may wish to designate one agency

for an historical trolley system and

another for the remaining systems

within the State. The rule is flexible in

this regard and is written to

accommodate those States that have

established an oversight program under

State law.

For those States that have not

established an oversight program and

have more than one rail fixed guideway

system within the State, we recommend

that the State designate only one agency

to implement the rule. This would save

resources and ensure the consistent

application of the rule.

Paragraph (b) is directed to States that

jointly operate a multi-State rail fixed

guideway system. Although we

recommend that the affected States

designate a single oversight agency, this

paragraph allows them to designate

more than one agency, other than the

transit agency, to implement the rule.

Moreover, this paragraph recognizes

that a single oversight agency

designated by the affected States will

not be an agency of any particular State.

B. Confidential Accident Reports.

(§ 659.23)

This section permits the State to

require the oversight agency to keep

investigation reports confidential in

civil litigation.

Subpart C—The Oversight Agency’s

Role

A. The System Safety Program

Standard. (§ 659.31)

This section directs the oversight

agency to develop a system safety

program standard that complies, at a

minimum, with the American Public

Transit Association’s ‘‘Manual for the

Development of Rail Transit System

Safety Program Plans’’ (APTA

Guidelines) available from the American

Public Transit Association, 1201 New

York Avenue, N.W., Washington, D.C.

20005–3917 or Office of Safety and

Security, Federal Transit

Administration, 400 Seventh Street,

S.W., Washington, D.C. 20590, and

requires the transit agency to address

the personal security of its passengers

and employees.

As discussed above, because the

APTA Guidelines were derived from

MIL–STD 882B, we believe that existing

oversight agencies that have used MIL–

STD 882B or its successor MIL–STD

882C to create their oversight programs

should meet, if not exceed, the APTA

Guidelines, although we recommend

that these existing oversight agencies

review their programs in this regard.

This section further directs the

oversight agency to develop a standard

that would require the transit agency to

address the personal security of its

passengers and employees. In this

regard, FTA has neither developed

specifications nor adopted a standard

for the oversight agency to follow.

Instead, we have published,

independently, two ‘‘how to’’

documents to be used by both the

oversight and transit agencies in

developing security standards and

procedures. These documents, ‘‘Transit

Security Procedures Guide’’ and

‘‘Transit System Security Program

Planning Guide,’’ are available free of

charge from the Office of Safety and

Security, Federal Transit

Administration, at the address noted

above. Although the use of these

documents is not mandated under the

rule, we recommend strongly that every

affected State and transit agency obtain

copies and review them. As noted

above, FTA also offers several courses

on security through TSI. Moreover, we

suggest that the oversight agency require

the transit agency to address such

criminal acts as terrorist activities and

‘‘street crime’’ such as muggings, rapes,

drug dealings, etc.

This section also allows the oversight

agency to create a program that is more

stringent than that required under the

APTA Guidelines, although we urge

those agencies not to adopt FRA-type

regulations.

B. System Safety Program Plans.

(§ 659.33)

This section establishes January 1,

1997, as the deadline for the

implementation of the system safety

program plan and requires the oversight

agency to have initially reviewed and

approved it before that date. It further

establishes January 1, 1998, as the

implementation date for the security

provisions of the system safety program

plan. It also requires the oversight

agency to direct the transit agency to

update the system safety program plan

as necessary. The oversight agency may

decide that it is necessary for a system

safety program plan to be updated at

certain intervals, or it may make a

determination based on accident

statistics or results from safety audits or

reviews, for example. Should the

oversight agency make such a

determination, this section directs it to

again review and approve the transit

agency’s updated system safety program

plan.

This section allows the oversight

agency to determine whether the

security provisions of the system safety

program plan should be publicly

available. FTA recommends strongly

that the oversight agency prohibit the

transit agency from publicly disclosing

the security portions of the system

safety program plan under any

circumstance.

C. Transit Agency Annual Audit

Reports. (§ 659.35)

Checklist number 9 of the APTA

Guidelines requires the transit agency to

draft a report summarizing the findings

of its internal safety audit. This section

of the rule requires the annual

submission of that report to the

oversight agency for its review.

D. Safety Reviews. (§ 659.37)

At least every three years, the

oversight agency must conduct an onsite safety review of the transit agency’s

implementation of its system safety

program plan. After this review has

been completed, the oversight agency

must issue a report detailing its findings

and recommendations, its analysis of

the system safety program plan, and its

determination whether the safety

program plan should be updated or

changed.

E. Transit Agency Report on Accidents

and Unacceptable Hazardous

Conditions. (§ 659.39)

To investigate ‘‘accidents’’ and

‘‘unacceptable hazardous conditions’’ as

required by section 5330, the oversight

agency must know about them. This

section directs the oversight agency to

require the transit agency to report

‘‘accidents’’ and ‘‘unacceptable

hazardous conditions’’ within the time

specified by the oversight agency.

F. Investigations. (§ 659.41)

As discussed above in the Discussion

of the Comments, the oversight agency

is not required to conduct the

investigation itself, but may do so

through another entity such as a
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations 67045

contractor or even the transit agency.

The oversight agency, however, must

decide how it is going to conduct an

investigation and establish the

procedures it or the entity acting on its

behalf will use.

There are numerous ways the

oversight agency may comply with this

requirement. For instance, the oversight

agency may establish one set of

procedures to investigate accidents and

another to investigate unacceptable

hazardous conditions. The oversight

agency may use a contractor, such as the

APTA Panel of Inquiry, to investigate

certain kinds of accidents and its own

staff to investigate others.

The rule is intentionally flexible to

allow the oversight agency to adapt an

oversight program to the needs of the

rail fixed guideway systems within the

State’s jurisdiction.

G. Corrective Actions. (§ 659.43)

Section 659.41 requires the oversight

agency to investigate ‘‘unacceptable

hazardous conditions.’’ This section

directs the oversight agency to require

the transit agency to develop a

corrective action plan to eliminate,

minimize, or control investigated

hazardous conditions in accordance

with the approved corrective action

plan and within the time period

specified by the oversight agency.

H. Oversight Agency Report to the

Federal Transit Administration.

(§ 659.45)

This section requires three kinds of

reports: initial, annual, and periodic.

The initial submission contains

information that will not change

frequently, such as the name and

address of the oversight agency and the

transit agencies it oversees, a copy of the

system safety program standard, and a

description of the oversight agency’s

procedures for conducting

investigations and ensuring that the

transit agency has undertaken

appropriate corrective actions. This

report must be updated only when some

of the information within it changes.

The annual submission describes the

activities of the oversight agency for the

previous twelve months, including any

determinations by the oversight agency

of the probable cause of ‘‘accidents’’ and

‘‘unacceptable hazardous conditions,’’ if

it can do so and protect the

confidentiality of investigation reports.

This section allows an oversight agency

required to submit annual reports to the

State to submit the same report to FTA,

if it contains all the necessary

information.

Last, this section allows FTA to

periodically ask the oversight agency to

submit certain kinds of information

such as the status reports on

‘‘accidents,’’ ‘‘hazardous conditions,’’

and corrective action plans. These

reports must be submitted only upon

FTA’s request.

I. Use of Contractors. (§ 659.47)

This section expressly allows the

oversight or transit agency to use

contractors to perform certain tasks

required under the rule. The agencies

may use a contractor to perform some or

all of these tasks. For instance, an

oversight agency may use a contractor to

conduct only accident investigations,

while another may use a contractor

solely to conduct safety reviews. A

transit agency may not be a contractor

for the oversight agency, however.

J. Certification of Compliance. (§ 659.49)

This section requires the oversight

agency to initially certify before January

1, 1997, that it has complied with the

rule. Thereafter, the oversight agency is

required to certify annually that it is in

compliance with the rule.

IV. Economic Analysis

FTA has evaluated the industry-wide

costs and benefits of the rule, ‘‘Rail

Fixed Guideway Systems; State Safety

Oversight,’’ which requires a State to

develop, through an oversight agency, a

program to oversee the safety of rail

fixed guideway systems. At least 19

States will be required to create an

oversight agency that must:

• Develop a System Safety Program

Standard which includes provisions

addressing security.

• Approve the transit agency’s initial

system safety program plan.

• Conduct safety reviews.

• Establish investigation procedures.

• Investigate accidents and

unacceptable hazardous conditions.

• Ensure the transit agency complies

with the oversight agency’s system

safety program standard.

• Review corrective action plans.

• Report to FTA.

At least 33 transit agencies must:

• Develop a System Safety Program

Plan and update it, as necessary.

• Prepare annual audit reports.

• Conduct safety audits.

• Classify hazardous conditions

according to the APTA Hazard

Resolution Matrix.

• Report accidents and unacceptable

hazardous conditions to the oversight

agency.

• Prepare corrective action plans.

• Handle hazardous conditions

according to approved corrective action

plans.

• Maintain safety data.

Generally, in analyzing the costs of

this rule, the Regulatory Evaluation

considered only those activities

required by the rule. For those States

and transit agencies that have already

established a program similar to the one

required by the rule, the Regulatory

Evaluation considered only those

activities necessary to bring these

programs into compliance with the rule.

Year One costs are estimated to be

approximately $336,000, the lowest for

any single year. This is because the

costs incurred in Year One are generally

limited to activities of the oversight

agencies and the FTA. Total costs for

the first ten years are estimated to be

approximately $9.1 million.

The estimated benefits of the rule are

assumed to take full effect in the third

year of implementation, 1998.

Therefore, the estimated fatalities and

injuries averted are based on an eightyear period. For this period there would

be 16 fatalities and 1,528 injuries

averted. Based on the Department’s

Willingness to Pay Threshold, the total

benefit of the rule is approximately $107

million over a ten-year period.

V. Regulatory Process Matters

A. Executive Order 12866

FTA has evaluated the costs and

benefits to the States of creating an

oversight program to oversee the safety

of rail fixed guideway systems and has

determined that this rule is a major rule

under Executive Order 12866 because it

affects State and local governments.

B. Departmental Significance

This proposed rule is a ‘‘significant

regulation’’ under the Department’s

Regulatory Policies and Procedures,

because it changes an important

Departmental policy. That policy

change requires the States to oversee the

safety of rail fixed guideway systems,

something the Federal government has

never before required.

C. Regulatory Flexibility Act

In accordance with 5 U.S.C. 603(a),

FTA has evaluated the effects of this

proposed rule on small entities. Based

on this evaluation, FTA hereby certifies

that this action will not have a

significant economic impact on a

substantial number of small entities

because the affected transit agencies

will in most cases be large.

D. Paperwork Reduction Act

The information collection

requirements in this rule have been

reviewed and approved by the Office of

Management and Budget under OMB

#2132–0558.
67046 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations

E. Executive Order 12612

We have reviewed this rule under the

requirements of Executive order 12612

on Federalism. FTA has determined that

since this rule has significant

Federalism implications it warrants a

Federalism assessment. We note,

however, that this rulemaking is

mandated by 49 U.S.C. 5330, which

requires a State to create an oversight

agency to oversee the safety of rail fixed

guideway systems.

In considering the Federalism

implications of the proposed rule, FTA

has focused on several key provisions of

Executive order 12612.

Necessity for action. This rule is

mandated by law, which requires that

rail fixed guideway systems be subject

to State oversight. Approximately

twenty-one States have rail fixed

guideway systems operating within

their jurisdictions. Of those, only five

States have established a State oversight

program.

Consultation with State and local

governments. FTA’s mission is to

provide financial assistance to mass

transportation systems throughout the

nation, thus providing grants to State

and local governments. Because this

rule will affect almost half of the States

as well as many local governments, we

published an ANPRM on June 25, 1992,

at 57 FR 28572, to solicit the views of

State and local governments. In

addition, we held three public hearings

in conjunction with the ANPRM. Also,

FTA published an NPRM on December

9, 1993, at 58 FR 64855, on which

numerous State and local governmental

agencies commented. Moreover, we

held a public hearing on the NPRM on

March 8, 1994, in conjunction with an

American Public Transit Association

conference, thus allowing more State

and local agencies to participate in the

development of this rule. In short, we

actively sought the views and comments

of the affected States.

Need for Federal action. This rule

responds to a Congressional mandate

but is designed to give a State maximum

flexibility in designing its own oversight

program.

Authority. The statutory authority for

this rule is discussed elsewhere in this

preamble.

Pre-emption. This rule does not, as

such, pre-empt State or local law. There

may be instances in which a State or

local agency faces a conflict between

compliance with the rule and State and

local requirements. Because compliance

with the rule is a condition of Federal

financial assistance, State and local

governments have the option of not

seeking the Federal funds if they choose

not to comply with this rule.

F. National Environmental Policy Act

FTA has determined that this rule has

no environmental implications. Its

purpose is to create a State oversight

program designed to oversee the safety

of rail fixed guideway systems.

G. Energy Impact Implications

This regulation does not affect the use

of energy because it creates a State

oversight program designed to oversee

the safety of rail fixed guideway

systems.

List of Subjects in 49 CFR Part 659

Grant programs—transportation,

Incorporation by reference, Mass

transportation, Reporting and

recordkeeping requirements, Safety,

Security, and Transportation.

Accordingly, for the reasons cited

above, the agency amends title 49 of the

Code of Federal Regulations by adding

a new part 659, to read as follows:

PART 659—RAIL FIXED GUIDEWAY

SYSTEMS; STATE SAFETY

OVERSIGHT

Subpart A—General Provisions

Sec.

659.1 Purpose.

659.3 Scope.

659.5 Definitions.

659.7 Withholding of funds for noncompliance.

Subpart B—The Role of the State

659.21 Designation of oversight agency.

659.23 Confidential investigation reports.

Subpart C—The Oversight Agency’s Role

659.31 The system safety program standard.

659.33 System safety program plans.

659.35 Transit agency annual audit reports.

659.37 Safety reviews.

659.39 Transit agency report on accidents

and unacceptable hazardous conditions.

659.41 Investigations.

659.43 Corrective actions.

659.45 Oversight agency report to the

Federal Transit Administration.

659.47 Use of contractors.

659.49 Certification of compliance.

Appendix to Part 659—Sample Certification

of Compliance.

Authority: 49 U.S.C. § 5330.

Subpart A—General Provisions

§ 659.1 Purpose.

This part implements 49 U.S.C. 5330

by requiring a State to oversee the safety

of rail fixed guideway systems through

a designated oversight agency.

§ 659.3 Scope.

This part applies to a State that has

within its boundaries a rail fixed

guideway system not regulated by the

Federal Railroad Administration (FRA).

§ 659.5 Definitions.

As used in this part—

Accident means any event involving

the revenue service operation of a rail

fixed guideway system if as a result:

(1) An individual dies;

(2) An individual suffers bodily injury

and immediately receives medical

treatment away from the scene of the

accident; or

(3) A collision, derailment, or fire

causes property damage in excess of

$100,000.

APTA Guidelines means the

American Public Transit Association’s

‘‘Manual for the Development of Rail

Transit System Safety Program Plans,’’

published on August 20, 1991.

Contractor means an entity that

performs tasks required by this part on

behalf of the oversight or transit agency.

The transit agency may not be a

contractor for the oversight agency.

FTA means the Federal Transit

Administration, an agency within the

U.S. Department of Transportation.

Hazardous condition means a

condition that may endanger human life

or property. It includes unacceptable

hazardous conditions.

Investigation means a process to

determine the probable cause of an

accident or an unacceptable hazardous

condition; it may involve no more than

a review and approval of the transit

agency’s determination of the probable

cause of an accident or unacceptable

hazardous condition.

Oversight agency means the entity,

other than the transit agency, designated

by the State or several States to

implement this part.

Rail fixed guideway system means any

light, heavy, or rapid rail system,

monorail, inclined plane, funicular,

trolley, or automated guideway that is:

(1) Included in FTA’s calculation of

fixed guideway route miles or receives

funding under FTA’s formula program

for urbanized areas (49 U.S.C. 5336);

and

(2) Not regulated by the Federal

Railroad Administration.

Safety means freedom from danger.

Safety review means a formal,

comprehensive, on-site examination by

the oversight agency of a transit

agency’s safety practices to determine

whether they comply with the policies

and procedures required under the

transit agency’s system safety program

plan.

Security means freedom from

intentional danger.

System safety program plan means a

document adopted by the transit agency
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations 67047

detailing its safety policies, objectives,

responsibilities, and procedures.

System safety program standard

means the standard developed and

adopted by the State oversight agency

which, at a minimum, complies with

the APTA Guidelines and which

addresses personal security.

Transit agency means an entity

operating a rail fixed guideway system.

Unacceptable hazardous condition

means a hazardous condition

determined to be an unacceptable

hazardous condition using the APTA

Guidelines’ Hazard Resolution Matrix

(APTA Guidelines, checklist number 7).

§ 659.7 Withholding of funds for noncompliance.

The Administrator of the FTA may

withhold up to five percent of the

amount required to be apportioned for

use in any State or affected urbanized

area in such State under FTA’s formula

program for urbanized areas for any

fiscal year beginning after September 30,

1997, if the State in the previous fiscal

year has not met the requirements of

this part and the Administrator

determines that the State is not making

adequate efforts to comply with this

part.

Subpart B—The Role of the State

§ 659.21 Designation of oversight agency.

(a) For a transit agency or agencies

operating within a single State, the State

must designate an agency of the State,

other than a transit agency, to serve as

the oversight agency and to implement

the requirements of this part.

(b) For a transit agency operating a

system within more than one State,

those States may designate a single

entity, other than the transit agency, to

implement the requirements of this part.

§ 659.23 Confidential investigation reports.

The State may prohibit an

investigation report that may be

prepared by the oversight agency from

being admitted into evidence or used in

a civil action for damages resulting from

a matter mentioned in the report.

Subpart C—The Oversight Agency’s

Role

§ 659.31 The system safety program

standard.

(a) The oversight agency must develop

and adopt a system safety program

standard that, at a minimum—

(1) Complies with the American

Public Transit Association’s ‘‘Manual

for the Development of Rail Transit

System Safety Program Plans’’ (APTA

Guidelines) published on August 20,

1991, hereby incorporated by reference;

and

(2) Requires the transit agency to

address the personal security of its

passengers and employees.

(b) The APTA Guidelines specify

procedures for developing a system

safety program plan, generally discuss

the principles of system safety, and

specifically address certain issues

critical to the safe operation of a rail

fixed guideway system.

(c) The incorporation by reference of

the APTA Guidelines has been

approved by the Director of the Federal

Register in accordance with 5 U.S.C.

552(a) and 1 CFR Part 51. Copies of the

APTA Guidelines may be obtained from

the American Public Transit

Association, 1201 New York Avenue,

N.W., Washington D.C. 20005–3917,

(202) 893–4000. The Guidelines may be

inspected at, and are available from the

Federal Transit Administration, Office

of Safety and Security, 400 7th Street,

S.W., Washington, D.C. 20590, and at

the Office of the Federal Register, 800

North Capitol Street, N.W., Washington,

D.C.

§ 659.33 System safety program plans.

(a) Except as provided in § 659.33(b),

the oversight agency must require the

transit agency to—

(1) Implement, beginning on January

1, 1997, a system safety program plan

conforming to the oversight agency’s

system safety program standard; and

(2) Approve in writing before January

1, 1997, the transit agency’s system

safety program plan.

(b) The oversight agency must require

the transit agency to—

(1) Implement, beginning on January

1, 1998, the security portions of its

system safety program plan; and

(2) Approve in writing before January

1, 1998, the security portions of the

transit agency’s system safety program

plan.

(c) After December 31, 1996, the

oversight agency must review and

approve, in writing, the transit agency’s

system safety program plan, as

necessary, and require the transit agency

to update its system safety program

plan, as necessary.

(d) The oversight agency may prohibit

a transit agency from publicly disclosing

the security aspects of the system safety

program plan.

§ 659.35 Transit agency annual audit

reports.

The oversight agency must—

(a) Require that the transit agency

submit, annually, a copy of the annual

safety audit report prepared by the

transit agency as a result of the Internal

Safety Audit Process (APTA Guidelines,

checklist number 9); and

(b) Review the annual safety audit

reports prepared by the transit agency.

§ 659.37 Safety reviews.

At least every three years the

oversight agency must conduct an onsite safety review of the transit agency’s

implementation of its system safety

program plan and prepare and issue a

report containing findings and

recommendations resulting from that

review, which, at a minimum, must

include an analysis of the efficacy of the

system safety program plan and a

determination of whether it should be

updated.

§ 659.39 Transit agency report on

accidents and unacceptable hazardous

conditions.

The oversight agency must require

that the transit agency report accidents

and unacceptable hazardous conditions

to the oversight agency within a

specified period of time.

§ 659.41 Investigations.

The oversight agency must—

(a) Establish procedures to investigate

accidents and unacceptable hazardous

conditions.

(b) Unless the National Transportation

Safety Board has investigated or will

investigate an accident, the oversight

agency must investigate accidents and

unacceptable hazardous conditions

occurring at a transit agency under its

jurisdiction.

§ 659.43 Corrective actions.

The oversight agency must require the

transit agency to minimize, control,

correct, or eliminate any investigated

hazardous condition within a time

period specified by and in accordance

with a corrective action plan approved

by the oversight agency.

§ 659.45 Oversight agency report to the

Federal Transit Administration.

(a) Initial submissions. Before January

1, 1997, the oversight agency must

submit to FTA the following

information, which must be updated as

necessary:

(1) The name and address of the

oversight agency;

(2) The name(s) and address(es) of the

transit agency or agencies subject to the

oversight agency’s jurisdiction under

this part; and

(3) A written description of the

oversight agency’s oversight program

including the following information:

(i) A copy of its system safety program

standard;

(ii) Its procedures or process for

reviewing and approving the transit

agency’s system safety program plan;
67048 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Rules and Regulations

(iii) Its investigatory procedures; and

(iv) Its procedures for ensuring that

appropriate corrective actions have been

taken by the transit agency to correct,

eliminate, minimize, or control

investigated hazardous conditions.

(b) Annual submissions. Before

January 1 of each year, the oversight

agency must submit to FTA a publicly

available annual report summarizing its

oversight activities for the preceding

twelve months, including a description

of the most common probable causal

factors of accidents and unacceptable

hazardous conditions.

(c) Periodic submissions. Status

reports of accidents, hazardous

conditions, and corrective action plans

must be forwarded to the FTA upon

request.

(d) Addresses. Reports and annual

summaries must be sent to: Federal

Transit Administration, Office of Safety

and Security, 400 7th Street, S.W.,

Washington, D.C. 20590.

§ 659.47 Use of contractors.

(a) The oversight agency may use a

contractor to—

(1) Develop a system safety program

standard;

(2) Review system safety program

plans;

(3) Review annual audit reports;

(4) Conduct safety reviews;

(5) Prepare safety review findings;

(6) Establish investigation procedures;

(7) Conduct investigations;

(8) Review corrective action plans;

and/or

(9) Prepare initial or annual

submissions to FTA.

(b) The oversight agency may allow a

transit agency to use a contractor to—

(1) Develop or update a system safety

program plan;

(2) Prepare annual audit reports; and/

or

(3) Develop a corrective action plan.

§ 659.49 Certification of compliance.

(a) Before January 1, 1997, and

annually thereafter, the oversight agency

must certify to the FTA that it has

complied with the requirements of this

part. Each certification shall comply

with the applicable sample certification

provided in the appendix to this part.

Each certification shall be sent to:

Federal Transit Administration, Office

of Safety and Security, 400 7th Street,

S.W., Washington, D.C. 20590.

(b) Each certification must be signed

by an official authorized by the

oversight agency and must comply with

the applicable sample certification

provided in the appendix to this part.

Appendix to Part 659—Sample

Certification of Compliance

This appendix contains an example of

certification language.

I, (name), (title), certify that (name of the

oversight agency) has implemented a State

oversight program that meets the

requirements of 49 CFR part 659 and further

certify that I have no conflict of interest with

any rail fixed guideway system overseen as

a result of 49 CFR part 659, nor does (name

of the oversight agency) and its contractors.

Issued: December 18, 1995.

Gordon J. Linton,

Administrator.

[FR Doc. 95–31159 Filed 12–26–95; 8:45 am]

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