[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)]
[Rules and Regulations]
[Pages 67034-67048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31159]




[[Page 67033]]

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Part IV





Department of Transportation





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Federal Transit Administration



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49 CFR Part 659



Rail Fixed Guideway Systems; State Safety Oversight; Final Rule

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

[[Page 67034]]


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. Sec. 5330
    B. Summary of the final rule
    C. Overview of the comments
    II. Discussion of the Comments
    A. Rail Fixed Guideway System
    B. System Safety Program Standard
    C. System Safety Program Plan--the six factors
    D. Planning, design, and construction
    E. Accountability factor
    F. EPA and OSHA requirements
    G. Security
    H. Biennial safety reviews
    I. Safety audits
    J. Accident
    K. Hazardous condition
    L. Investigations
    M. Confidentiality of oversight agency investigation reports
    N. Certified Transit Safety Professional
III. Section-by-Section Analysis
IV. Economic Analysis
V. Regulatory Process Matters

I. Background

    The Intermodal Surface Transportation Efficiency Act of 1991 (Pub. 
L. 102-240), enacted into law on December 18, 1991, added section 28 to 
the Federal Transit Act (recently codified at 49 U.S.C. 5330 (1994)), 
which requires the Federal Transit Administration to issue regulations 
creating a State oversight program. On June 25, 1992, FTA issued an 
Advance Notice of Proposed Rulemaking (ANPRM) soliciting public comment 
on a range of issues to be addressed in drafting a Notice of Proposed 
Rulemaking (NPRM). 57 FR 28572. The agency held hearings on the ANPRM 
in Los Angeles, California; Portland, Oregon; and Washington, DC. 
Thirty-five entities either submitted comments to the docket or 
testified at one of the three hearings, including fifteen transit 
authorities, three utility commissions, eight States, one engineering 
firm, two transit associations, one labor union, one Federal agency, 
one transit supplier, two representatives from the people mover 
industry, and one transportation consultant.
    On December 9, 1993, FTA published its NPRM (58 FR 64855) and today 
publishes its final rule, which requires States to oversee the safety 
of rail fixed guideway systems.

A. 49 U.S.C. 5330

    In general, section 5330 applies only to those States in which a 
rail fixed guideway system operates that is not regulated by the 
Federal Railroad Administration, and requires any such State to 
designate a State oversight agency to be responsible for overseeing the 
rail fixed guideway system's safety practices. FTA is required to issue 
a rule implementing the program and may withhold Federal funds if a 
State fails to implement the rule.
    More specifically, the statute describes the responsibilities of 
the State and the agency the State designates to provide oversight, 
which in most instances will be an agency of the State because most 
rail fixed guideway systems operate in only one State. When a rail 
fixed guideway system operates in more than one State, however, the 
statute permits the affected States to designate any entity, other than 
the transit agency itself, to oversee that rail fixed guideway system.
    Whether the oversight agency is a State agency or some other 
entity, it must require each affected transit agency to create a system 
safety program plan, which the oversight agency must review and 
approve. The oversight agency must also investigate accidents and 
hazardous conditions. Once a hazardous condition has been discovered, 
the oversight agency must require the transit agency to correct or 
eliminate it.-
    If a State has not met these requirements or has not made adequate 
efforts to comply with them, the Secretary may withhold up to five 
percent of a fiscal year's apportionment under FTA's formula program 
for urbanized areas (formerly section 9) attributable to the State or 
an affected urbanized area in the State.

B. Summary of the Final Rule

    The rule delineates the responsibilities of the State, the 
oversight agency, the transit agency, and the FTA.

The State

    Under the rule, the primary responsibility of the State is to 
designate an entity or entities to oversee the safety of a rail fixed 
guideway system. When the rail fixed guideway system operates only 
within a single State, that entity or entities must be an agency of the 
State; when it operates in more than one State, the affected States may 
designate a single entity to oversee that system. In neither case may 
the State designate the transit agency as the oversight agency.
    To ensure the oversight agency's candid assessment of the probable 
cause of a particular accident or unacceptable hazardous condition, the 
rule allows the State to enact legislation prohibiting the disclosure 
of oversight agency investigation reports.

The Oversight Agency

    The rule directs the oversight agency, or an entity acting on its 
behalf, to develop a system safety program standard, a document that 
establishes the relationship between the oversight and transit agencies 
and specifies the procedures that the transit agency must follow. The 
system safety program standard must, at a minimum, comply with the 
American Public Transit Association's ``Manual for the Development of 
Rail Transit System Safety Program Plans'' (``APTA Guidelines''), a 
manual widely used throughout the transit industry and available from 
the American Public Transit Association (APTA), 1201 New York Avenue, 
N.W., Washington, D.C. 20005-3917, or the Federal Transit 
Administration, Office of Safety and Security, 400 7th Street, S.W., 
Washington, D.C. 20590. The APTA Guidelines assist in developing safety 
practices to reduce the likelihood of unintentional events that may 
lead to death, injury, or property damage. In 

[[Page 67035]]
addition, the system safety program standard must include specific 
provisions addressing ``security'' matters, intentional wrongful or 
criminal acts, such as muggings, rapes, murders, assaults, or terrorist 
activities. To develop this portion of the system safety program plan, 
we suggest that the oversight agency use FTA's ``Transit Security 
Procedures Guide'' and ``Transit System Security Program Planning 
Guide,'' available from the FTA at the address above.
    The oversight agency must require the transit agency to develop a 
system safety program plan that complies with the oversight agency's 
system safety program standard. By January 1, 1997, the oversight 
agency must review and approve, in writing, the transit agency's system 
safety program plan; however, the ``security'' provisions of the system 
safety program plan must be approved initially by the oversight agency 
by January 1, 1998. After the initial approvals, the oversight agency 
must review, as necessary, the transit agency's system safety program 
plan and determine whether it should be updated. All oversight agency 
approvals must be in writing.
    The rule allows the oversight agency to prohibit the transit agency 
from publicly releasing the ``security'' provisions in the system 
safety program plan.
    The oversight agency must require the transit agency to conduct 
safety audits according to the Internal Safety Audit Process detailed 
in checklist number 9 of the APTA Guidelines. Once a year the transit 
agency must compile and submit an audit report to the oversight agency 
or an entity acting on its behalf for review.
    Aside from reviewing the transit agency's safety audit reports, the 
oversight agency must conduct on-site safety reviews every three years. 
In a safety review, the oversight agency must assess whether the 
transit agency's actual safety practices and procedures comply with its 
system safety program plan. Once this review is completed, the 
oversight agency must prepare a report containing its findings and 
recommendations, an analysis of the efficacy of the transit agency's 
system safety program plan, and a determination of whether the system 
safety program plan should be updated.
    The oversight agency must require the transit agency to report the 
occurrence of accidents and unacceptable hazardous conditions within a 
period of time specified by the oversight agency. The oversight agency 
must investigate such reports in accordance with procedures it has 
established. The oversight agency may conduct its own investigation, 
use a contractor to conduct an investigation, or rely on the 
investigation conducted by the transit agency or the National 
Transportation Safety Board (NTSB).
    After the oversight agency has investigated an accident or 
unacceptable hazardous condition, it must require the transit agency to 
minimize, control, correct, or eliminate it, in accordance with a 
corrective action plan drafted by the transit agency and approved by 
the oversight agency.
    The oversight agency must submit three kinds of reports to FTA: an 
initial submission, an annual submission, and a periodic submission. In 
the initial submission, the oversight agency lists the names and 
addresses of the rail fixed guideway systems it oversees. This report 
must be updated only when that information changes. In the annual 
submissions, the oversight agency must submit to FTA a publicly 
available report summarizing its oversight activities for the past 
year. Periodically, an oversight agency must submit to FTA status 
reports of accidents, hazardous conditions, and corrective action 
plans. The oversight agency must submit these reports only if FTA so 
requests.

The Transit Agency

    The transit agency must develop a system safety program plan that 
complies with the oversight agency's system safety program standard. It 
must conduct safety audits that comply with the Internal Safety Audit 
Process, APTA Guidelines, checklist number 9, and draft and submit to 
the oversight agency a report summarizing the results of the safety 
audit. The transit agency must classify hazardous conditions according 
to the APTA Guidelines' Hazard Resolution Matrix. The transit agency 
must report, within the timeframe specified by the oversight agency, 
any accident or unacceptable hazardous condition that has occurred on 
the rail fixed guideway system. The transit agency may, if the 
oversight agency so chooses, conduct investigations on behalf of the 
oversight agency. Once an investigation has been completed, the transit 
agency must obtain the oversight agency's approval of a corrective 
action plan and then implement the plan so as to minimize, control, 
correct, or eliminate the particular unacceptable hazardous condition 
or condition that has caused an accident.

The Federal Transit Administration

    The FTA assesses whether the State has complied with the rule or 
has made adequate efforts to comply with it. If the FTA determines that 
the State is not in compliance or has not made adequate efforts to 
comply, it may withhold up to five percent of the amount apportioned 
for use in the State or affected urbanized areas under FTA's formula 
program for urbanized areas (formerly section 9). Also, FTA receives 
reports from the oversight agency.

C. Overview of the Comments

    The FTA received 60 comments in response to the NPRM. FTA 
considered all comments filed in a timely manner as well as all 
statements and material presented at the public hearings on the rule. 
The breakdown among commenter categories is as follows:

Transit Agencies.....................................................27
State DOTs............................................................9
Public Utilities......................................................6
Cities................................................................1
Federal Agencies......................................................2
Independent Consultants...............................................8
Trade Associations....................................................2
Safety Societies/Associations.........................................5

    In Section II below, we discuss in detail the public comments 
addressing issues raised in the NPRM. One such issue, how the term 
``rail fixed guideway system'' should be defined, affects the scope of 
the rule. Another key issue, how the system safety program standard 
should be developed and what it should include, will directly affect 
the relationship between the oversight and transit agencies. Most 
important, we examine whether the oversight agency should use the APTA 
Guidelines or Military Standard 882B or 882C (MIL-STD 882B or 882C) to 
develop its system safety program standard. We also examine whether the 
system safety program standard should cover the planning, design, and 
construction phases of a rail fixed guideway system's life cycle; EPA 
and OSHA-type matters; ``security''; and other issues.
    Also, we discuss the oversight agency's role in investigating 
accidents and unacceptable hazardous conditions. A related issue 
concerns whether investigation reports should be kept confidential.
    For additional discussion on individual issues, see also the 
Section-By-Section Analysis below in Section III.

II. Discussion of the Comments

A. Rail Fixed Guideway System

    The first issue is the definition of ``rail fixed guideway 
system.'' Statutes give us limited guidance in this regard; section 
5330, the authority for this rulemaking, states that it applies ``only 
to States that have rail fixed guideway mass transportation systems not 
subject 

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to regulation by the Federal Railroad Administration.'' Another 
provision, 49 U.S.C. Sec. 5302, defines ``mass transportation'' as 
``transportation by a conveyance that provides regular and continuing 
general or special transportation to the public * * *.'' Finally, 49 
U.S.C. Sec. 20102(1), which defines railroads subject to regulation by 
the FRA, specifically excludes ``rapid transit operations within an 
urban area that are not connected to the general railroad system of 
transportation.'' Of mass transportation systems, generally, only 
commuter railroads are regulated by the FRA. Therefore, we asked in 
both the ANPRM and the NPRM whether we should adopt a narrow definition 
and include only light and heavy rail systems or a broad definition and 
include other rail systems, such as monorails, inclined planes, trolley 
systems, and funiculars, as well.
    Many commenters to the ANPRM did not address this issue. Those that 
responded directed their comments to specific issues; for instance, six 
commenters discussed including people movers, while only two commenters 
proposed a definition for FTA's consideration. In the NPRM, FTA 
proposed to define ``rail fixed guideway system'' as

    Any public transportation facility not regulated by the Federal 
Railroad Administration, which occupies a separate right-of-way 
exclusively for public transportation or uses a steel-wheeled 
catenary or other rail system sharing a right-of-way with other 
forms of transportation and, which is included in the calculation of 
fixed guideway route miles under section 9 of the FT Act.

    As we explained in the preamble to the NPRM, this definition would 
cover light and heavy rail, cable cars, trolleys, people movers, and 
inclined planes so long as their mileage is included in the calculation 
of fixed guideway route miles under section 9 of the FT Act. We further 
noted that the Morgantown People Mover, which is not used in the 
calculation of route miles under the section 9 formula program, would 
not be covered by the proposed rule, while the Detroit People Mover, 
which is used in the calculation of the section 9 formula would be 
covered. We further noted that the definition also would not cover 
rubber-wheeled trolley buses that use a catenary system, as they are 
subject to motor vehicle regulations.
    Many of the commenters to the NPRM urged FTA to adopt the narrow 
definition, with most of them suggesting that the definition be limited 
to light and heavy rail systems only. In support of their contention, 
some of these commenters noted that in the past, NTSB had recommended 
that FTA oversee the safety of rapid rail transit systems only, 
although these commenters stated that light rail systems should be 
covered by the rule as well. Concerning people movers, inclined planes, 
amusement rides, funiculars, historical trolleys, cable cars, and other 
rail transit systems, these commenters opposed their inclusion, opining 
that they do not present the same level of risk to public safety as 
posed by heavy and light rail systems.

    NTSB also commented on this issue by stating that although it 
had no accident investigation experience with people movers or 
incline planes that would provide a basis to determine if these 
systems should be covered by the FTA's regulations, the Board 
believe[s] that the safety of any system that regularly transports 
people should be monitored by an appropriate State or local agency. 
Limiting the definition of a rail fixed guideway system to those 
systems used by an urbanized area in the calculation of fixed 
guideway route miles under Section 9 of the Federal Transit Act 
would apparently exclude some of these systems from the proposed 
regulation. Further, it is possible that an urbanized area could not 
count in the statutory formula to determine Section 9 Federal funds 
the rail route miles of a particular system to avoid having the 
system covered by the proposed oversight regulation. In short, the 
Safety Board questions the need for the Section 9 limitation to the 
definition.

    FTA Response. Although most commenters recommended that we cover 
only light and heavy rail systems, we agree with the NTSB that ``any 
system that regularly transports people should be monitored by an 
appropriate State or local agency.'' Hence, the rule covers inclined 
planes, monorails, trolleys, automated guideways, and funiculars along 
with light, rapid, and heavy rail systems. We did, however, change the 
definition to clarify that guided busways are not covered.
    We also made another change in light of NTSB's assertions that the 
proposed definition may exclude some systems that are not used to 
calculate fixed guideway route miles under FTA's formula grant program 
for urbanized areas. We do not believe this would be the case because 
FTA's grant program is based, in part, on the amount of ``fixed 
guideway route miles'' within an urbanized area. It is therefore in the 
urbanized area's interest to include as many systems as possible. 
Moreover, in most instances, a system that receives Federal funding 
under FTA's formula grant program for urbanized areas would have its 
mileage included in the calculation. The opposite, however, is not 
true; there are systems whose mileage is used in the calculation that 
do not receive funding under FTA's formula grant program for urbanized 
areas. That is why we proposed covering those systems that are used in 
the calculation instead of just certain recipients of FTA funding; it 
is actually a broader category. Nevertheless, we have added a provision 
to cover any system that receives funding under FTA's formula grant 
program for urbanized areas or is used in the calculation of ``fixed 
guideway route miles.'' This definition should cover most rail mass 
transit systems not regulated by the FTA.

B. System Safety Program Standard

    Section 5330 requires FTA to issue regulations that direct the 
State oversight agency to develop ``a safety program plan for each 
[rail] fixed guideway mass transportation system in the State.'' In the 
NPRM, we proposed to require the oversight agency to adopt a system 
safety program standard, which a transit agency would then use to 
develop its system safety program plan, the document used by the 
transit agency to ensure that it uses proper safety practices and 
procedures.
    The NPRM further proposed that the oversight agency's ``system 
safety program standard'' comply, at a minimum, with the American 
Public Transit Association's ``Manual for the Development of Rail 
Transit System Safety Program Plans,'' (``APTA Guidelines''). In the 
preamble to the NPRM, we noted that we had considered adopting Military 
Standard 882B (MIL-STD 882B), which has been subsequently superseded by 
MIL-STD 882C, but found it unnecessary because APTA had developed its 
Guidelines by adapting MIL-STD 882B to the transit industry.
    While most commenters favored the use of the APTA Guidelines, one 
commenter strongly favored the use of MIL-STD 882B or 882C to develop 
the system safety program standard. This commenter noted that:

    [T]he discussion of the Proposed Rule indicates that the APTA 
requirement is equivalent to MIL-STD 882B, and that the APTA 
standard can therefore be used in place of the MIL-STD. It should be 
noted that the APTA standard is not equivalent to the military 
standard. There are significant and important philosophical 
differences between the two documents. The most important of the 
differences is that MIL-STD 882 specifies that system safety be 
started very early in the project, that it must be involved in the 
design of the system, that a specific order of precedence must be 
followed to increase safety, and that risk assessments must be based 
upon probability and severity. The APTA standard emphasizes the use 
of system safety for operational systems after they have been 
completed and put into service, 

[[Page 67037]]
indicates that system safety is mostly concerned with operations and 
procedures, and implies that safety can be `audited' into a system. 
While the APTA Manual does mention that system safety is needed 
during the design phases, the emphasis is clearly on later phases * 
* * . Another potential concern with the APTA Manual is that it 
describes the audit process in terms of determining whether or not 
the transit agency is following its system safety program, but is 
silent on the issue of determining whether or not that program can 
be expected to accomplish its goals. While this is appropriate for 
an organization such as APTA, it may not be appropriate for an 
Oversight Agency. It may be important for the Oversight Agency to 
review the Transit Agencies' plans with an eye toward trying to 
determine whether or not the plan is likely to result in an 
effective system safety program * * * .

    This commenter also noted that MIL-STD 882C incorporates changes 
concerning ``Software Safety.''
    FTA Response. This commenter has certainly made a convincing case 
for the adoption of MIL-STD 882B or 882C, and we emphasize that, 
although we have adopted the proposal as published in the NPRM, we have 
not precluded the use of either of those Military Standards. Instead, 
we have adopted the APTA Guidelines as a minimum standard the oversight 
agency must meet or exceed; because the APTA Guidelines were derived 
from MIL-STD 882B, an oversight agency that bases its system safety 
program standard on either MIL-STD 882B or 882C should meet or exceed 
the requirements of the APTA Guidelines. Moreover, by adopting the APTA 
Guidelines as a minimum standard, we accomplish two objectives: 
establishing a nation-wide baseline standard and giving a State more 
flexibility and control in developing its own program.
    We do, in fact, urge the oversight agency to assess the APTA 
Guidelines in relation to MIL-STD 882B or 882C and decide which one 
best addresses its needs. We believe that an oversight agency that uses 
either MIL-STD 882B or 882C as a basis for its system safety program 
standard is well served, and we urge an oversight agency to at least 
consider those Military Standards in developing its own oversight 
program.
    Although we have not mandated the use of MIL-STD 882B or 882C, we 
have addressed one of the concerns of this commenter, by adding a 
provision in the rule to require the oversight agency to determine the 
efficacy of the transit agency's system safety program plan and require 
the transit agency to update it, if necessary.
    This commenter also commented that the MIL-STD 882C's section on 
``Software Safety'' is ``of critical importance to modern transit 
systems''; we recommend that both the oversight agency and the transit 
agency assess whether that section meets the safety needs of the ``rail 
fixed guideway system.''

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

    As mentioned above, under the NPRM the transit agency was to 
develop a system safety program plan that complied with the oversight 
agency's system safety program standard. In the preamble to the NPRM, 
we suggested that the system safety program plan should: (1) be 
endorsed by top management; (2) establish the safety goals and 
objectives of the transit agency; (3) identify safety issues; (4) 
require cooperation within the transit agency to address the identified 
safety issues; (5) recognize that achieving safety goals and objectives 
may require the involvement of entities other than the transit agency; 
and (6) provide a schedule for the implementation and revision of the 
system safety program plan. We then asked for comment on whether we 
should require these six factors in the final rule.
    Only seven commenters responded to this issue, and none of them 
opposed the general concept of the six factors. Several of the 
commenters noted, however, that all six factors are included in the 
APTA Guidelines, making them unnecessary if FTA incorporates the APTA 
Guidelines into the final rule.-
    -FTA Response. Since the six factors are included in the APTA 
Guidelines, which we have incorporated by reference into the final 
rule, the oversight agency must require the transit agency to address 
all six factors in its system safety program plan.

D. Planning, Design, and Construction.

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

    To apply only to the operation of rail fixed guideway systems, 
which would lead to the conclusion that the NPRM covers only those 
rail fixed guideway systems already in existence, or other systems 
only when they commence operations. On the other hand, if we were to 
interpret section [5330] to apply during the planning, design, and 
construction phases of a system, we would then have to decide when 
the State would be required to comply with this proposed rule. This 
would be especially difficult for those States where systems are in 
the planning stage, which can be a lengthy process, and it would be 
difficult to specify at what point the oversight agency would have 
to be established.

    Of the commenters that responded to this issue, only a few favored 
covering the pre-operational phases of the rail fixed guideway system's 
life cycle. One of these commenters stated that ``[t]o ensure that the 
design of facilities and systems results in optimal safety, the system 
safety approach has been shown to be highly effective and cost 
efficient.''
    The vast majority of the commenters were against covering the 
planning, design, and construction phases in this rule, stating in 
effect, that other mechanisms, i.e., FTA's Program Management Oversight 
(PMO) process and the construction contract itself can ensure that 
safety is planned, designed, and constructed into new rail fixed 
guideway systems.
    FTA Response. Although we agree that a system safety program plan 
should cover the planning, design, and construction of a ``rail fixed 
guideway system,'' the language of section 5330 leads us to conclude 
that it covers only operating systems or systems about to commence 
operations. Section 5330 directs a State to establish and carry out a 
``safety program plan for each [rail] fixed guideway mass 
transportation system in the State,'' never mentioning the planning, 
design, and construction phases of a system's life cycle. Moreover, 
because of the lengthy planning, design, and construction phases of a 
system's life cycle, we believe that it is impractical, especially for 
a State planning its first ``rail fixed guideway system,'' to require 
that a State create a bureaucracy years before a single passenger is 
served, when there are other mechanisms available to ensure that safety 
is designed, planned, and constructed into a new ``rail fixed guideway 
system.'' This does not mean, however, that a State is precluded from 
creating an oversight agency that oversees the planning, design, and 
construction of a ``rail fixed guideway system.'' On the contrary, we 
encourage the States to do so, although we do not, under this rule, 
require it. Also, we encourage the oversight agencies to work with PMOs 
to ensure that safety is designed, planned, and constructed into new 
``rail fixed guideway systems.''

E. Accountability Factor.

    While drafting the NPRM, we were concerned that the development of 
a State Safety Oversight Program would not be complete without some 
mechanism to ensure transit agencies' commitment to safety. To 
``institutionalize'' this commitment and to meet the requirements of 
section 5330, we developed the ``accountability factor,'' in which the 
oversight agency would require a transit agency to 

[[Page 67038]]
identify tasks critical to safety and the persons responsible for 
performing those tasks. This concept was derived from section 207 of 
MIL-STD 882B, which concerns the ``identification of safety-critical 
equipment and procedures.'' The ``accountability factor'' was intended 
to help the transit agency identify and correct problems.
    Most of the commenters on this issue opposed the inclusion of the 
``accountability factor'' in the rule because, in their opinion, it 
would not achieve its intended purpose of making systems safer. For 
instance, one commenter stated such a requirement would allow the 
oversight agency not just to oversee but to micromanage the transit 
agency; another claimed that it would become a ``paperwork'' exercise 
and actually hinder the development of safety practices and procedures. 
Yet another commenter stated that it would be used to ``fix'' blame. 
One commenter argued that the ``accountability factor'' was a 
``misapplication'' of section 207 of MIL-STD 882B, which, according to 
this commenter, was developed to verify compliance with safety 
equipment and procedures, an activity distinct from system safety 
program activities. Last, some commenters indicated that the 
``accountability factor'' was not necessary under the rule because a 
well-drafted system safety program plan incorporates accountability 
into it.
    Although the NTSB favored the inclusion of the ``accountability 
factor'' in the final rule, it did not elaborate on its reasoning.
    FTA Response. The final rule does not include the ``accountability 
factor'' because on balance, we have concluded that the oversight 
agency is best suited to meet the directives of section 5330(c)(1) to 
``establish[ ] * * * lines of authority [and] levels of responsibility 
and accountability * * *'' for the rail fixed guideway system. We note 
that the APTA Guidelines checklist numbers 1 through 5 stress the 
development of a concept similar to the proposed ``accountability 
factor.''

F. EPA and OSHA Requirements.

    We asked whether the system safety program plan should address 
matters covered by the Occupational Safety and Health Administration 
(OSHA) and the Environmental Protection Agency (EPA). Four argued that 
it should; three were opposed. Those in favor supported a 
``comprehensive approach'' to safety in which various safety issues or 
``disciplines'' are integrated for a total prevention effort. Those in 
opposition were concerned about creating overlapping jurisdiction 
between the oversight agency and the State agency with authority to 
enforce the EPA and OSHA laws and regulations.
    FTA Response. By adopting the APTA Guidelines, which address OSHA 
and EPA matters in System Safety Checklist numbers 19 and 20, 
respectively, we have required that these matters be included in the 
system safety program plan. Although this allows the possibility of 
jurisdictional conflicts among State agencies, the benefits of the 
oversight agency's adopting a total approach to safety outweigh this 
possibility. Moreover, a State can plan to reduce or eliminate any 
duplicative jurisdiction between the oversight agency and any other 
State agency with jurisdiction over EPA and OSHA matters.-

G. Security.

    In the preamble to the NPRM, we asked whether the system safety 
program plan should address security matters, and if so, what 
specifically should be included. Many commenters responded to this 
question, most negatively; some contended that security matters should 
be handled by law enforcement personnel and not by transit safety 
professionals, others opined that requiring the system safety program 
plan to address security matters is outside the scope of section 5330, 
and others stated that whether transit security matters should be 
included in the system safety program plan should be decided by State 
and local transit officials and not mandated by the Federal government.
    More particularly, one commenter noted that ``security is a 
separate issue which requires separate treatment, separate techniques, 
separate concerns, and separate disciplines.'' This commenter 
continued:

    [A]lthough, many times the public may perceive their safety as 
being `freedom from assault or attack from other individuals', 
normally professionals in the industry define safety in association 
with unintentional events or conditions (accidents), whereas, 
security is defined as being associated with intentional acts 
(usually illegal acts). The causes and the control measures for 
these two situations (safety and security) are entirely different * 
* *. One good reason for keeping these separate is the different 
type of management required. Typically, effective management of 
security requires law enforcement type management philosophies, 
whereas effective management of safety requires entirely different 
(and sometimes opposite) kinds of thinking. Management of these two 
functions must be separated, because of the different skills, 
philosophies, management styles, and kinds of managers required.

    Other commenters noted another important difference between safety 
procedures and security measures: Safety procedures, policies, and 
processes can be made public and still be effective, whereas security 
measures, to be effective, must be kept confidential. Thus, these 
commenters reasoned, security measures should not be included in a 
publicly available document, such as a system safety program plan.
    The commenters in favor of requiring the system safety program plan 
to address security matters focused on the similarities between 
security measures and safety issues. Most notably, these commenters 
stated, safety and security procedures are both forms of risk 
management; ``[s]afety is the management of the risk to persons and 
property from accidental or negligent loss * *  [while] security is the 
management of the risk to persons and property from criminal acts.''
    Last, some commenters contended that emergency planning and 
response procedures were the same for both safety and security events. 
Four commenters recommended that FTA include security only when it 
relates to emergency planning and response.
    FTA Response. Because we agree with the commenter who noted that 
safety and security are both forms of risk management and because of 
recent terrorist acts, we have decided to require the inclusion of 
security considerations in the system safety program plan. In response 
to another commenter, however, we have added a provision to the rule 
that will allow the security portion of the system safety program plan 
to be barred from public disclosure.
    We disagree, however, with the argument that Congress did not 
intend section 5330 to include security. Section 5330(c)(1) states that 
``[a] State meets the requirement of this section if the State--
establishes and is carrying out a safety program plan for each [rail] 
fixed guideway mass transportation system in the State * * *'' 
[emphasis added]. According to Webster's Third New International 
Dictionary, ``safety'' means ``the condition of being safe; freedom 
from exposure to danger, exemption from hurt, injury, or loss,'' 
whereas ``security'' means ``the quality or state of being secure: as 
(a) freedom from danger: safety.'' It seems clear, therefore, that the 
meaning of safety encompasses the meaning of security. Moreover, 
according to the System Safety Glossary published in 1985, by the 
Transportation Safety Institute ``safety'' is defined as ``[a] 
reasonable degree of freedom from those conditions that can cause 
injury or death to personnel, damage to or loss of equipment or 

[[Page 67039]]
property; freedom from danger''; this would certainly cover intentional 
acts. Similarly, according to the Transit Security Program Planning 
Guide recently published by the FTA, ``security'' means ``freedom from 
intentional danger,'' while ``safety'' means ``freedom from danger.'' 
Therefore, section 5330 can be interpreted, and we do, to require the 
inclusion of security in the system safety program plan.
    Other commenters indicated that security should not be included in 
the system safety program plan because safety and security are as 
different from each other as apples from oranges. One transit agency 
presented safety and security as two different disciplines requiring 
two different approaches and two different kinds of trained personnel. 
Thus, this commenter reasoned, the system safety program plan should 
not address security matters. In our view, however, safety and security 
risks are interrelated, especially from the perspective of transit 
passengers. We agree with the commenter who wrote:

    [A]lthough the disciplines have been separated in their normal 
application, there is a trend for a united knowledge base of safety 
with security so that any type of hazard is examined for its 
implication as a security type of problem. As with other 
disciplines, safety and security requirements may be at odds 
requiring careful analysis of the potential hazards and threats 
against the transit system and the development of appropriate trade-
off studies. The Transit Safety Professional needs to have security 
analyses in the curriculum of study and certification to ensure 
awareness of the issues and concerns related to security. In 
addition, security systems themselves require safety analyses to 
ensure that they are properly covered.

    We also disagree with the commenter who recommended that only 
emergency response procedures be included in the system safety program 
plan. We note that the APTA Guidelines already contain a provision 
concerning emergency preparedness. While emergency preparedness is 
itself a valuable activity, it does not prevent either intentional or 
unintentional acts from occurring. An emergency preparedness plan is 
used to develop a response to an event, while the overall system safety 
program plan develops procedures to reduce the likelihood of either 
intentional or unintentional events from occurring.

H. Biennial Safety Reviews

    In the proposed rule, the oversight agency would comprehensively 
review, on-site, the rail fixed guideway system's safety practices 
every two years. Most commenters objected to this provision. Some 
maintained that a review every two years was unnecessary and 
burdensome; in support of their contention, they mentioned APTA's Rail 
Safety Audit Program, in which auditors employed by APTA review a rail 
fixed guideway system's safety practices every three years. They 
maintain that a three-year review schedule adequately addresses safety 
needs. One commenter indicated that APTA adopted a three-year schedule 
to give rail fixed guideway systems time to take corrective and other 
recommended actions. Another commenter, a State agency already 
overseeing rail fixed guideway systems, stated that it does not 
independently conduct on-site reviews, but instead observes the APTA 
auditors review a system; this commenter concluded that this approach 
works well for it and the rail fixed guideway systems under its 
jurisdiction. Some commenters urged us to specifically allow oversight 
agencies to use the APTA Rail Safety Audit Program.
    Other commenters favored a flexible approach, in which the 
oversight and transit agencies schedule reviews appropriate for the 
age, size, and complexity of the rail fixed guideway system. One 
commenter recommended that we specify the exact requirements of a 
safety review.
    FTA Response. Agreeing generally with the commenters, we have made 
the rule more flexible. For instance, the rule requires the oversight 
agency to review the transit agency's safety practices at least every 
three years instead of every two, as we had proposed. The oversight 
agency may conduct these reviews more frequently if it chooses. 
Moreover, the rule expressly allows the oversight agency to use a 
contractor to conduct the required review, which allows the oversight 
agency to use the APTA Rail Safety Audit Program or any other qualified 
contractor to conduct safety reviews.
    Although one commenter had urged us to define specifically the 
requirements of a safety review, we have declined to do so. Instead, 
the oversight agency should determine for itself, based on the age, 
size, and complexity of the individual rail fixed guideway system 
within its jurisdiction, the exact extent of the review; however, it 
must be comprehensive, i.e., cover all matters included in the transit 
agency's system safety program plan.
    The process used by the California Public Utilities Commission 
(CPUC) illustrates how the rule can be flexible. Instead of using its 
staff to conduct comprehensive safety reviews, CPUC staff accompany and 
observe APTA auditors who perform a comprehensive safety audit. This 
system allows CPUC personnel to cover the daily operation and 
maintenance activities of the rail fixed guideway system and conduct 
in-depth reviews of particular activities on an ``apparent need'' 
basis. For instance, CPUC's staff conducted in-depth reviews of track 
maintenance practices at five different rail fixed guideway systems. In 
short, an oversight agency could conduct its own safety reviews, 
contract them out completely, or adopt an approach similar to CPUC's, 
in which both a comprehensive safety review and an in-depth review of a 
particular system component is conducted by another contractor or 
oversight agency personnel.
    One commenter recommended that the extent and frequency of safety 
reviews depends on the particular phase of the rail fixed guideway 
system's lifecycle. This commenter recommended that a safety audit be 
performed during the preliminary engineering phase to assure properly 
defined criteria, during the final design stage to assure that the 
criteria has been included in the specifications, during pre-revenue 
testing to assure the systems have been properly installed and the 
system tested and safety certified, then every two to three years when 
the system is operational, and more frequently if there are serious 
problems. We agree with this commenter, although we have not adopted 
his suggestions formally in the rule. Instead, we strongly urge 
oversight agencies to consider these kinds of factors when establishing 
a safety review process.

I. Safety Audits

    FTA proposed to require the transit agency to conduct a ``safety 
audit,'' a ``methodical, ongoing, internal examination of a transit 
agency's safety practices to determine whether they comply with the 
policies and procedures required under the transit agency's system 
safety program plan.'' The results of these safety audits were to be 
compiled every six months by the transit agency into a report to the 
oversight agency, which would review those reports as part of its 
monitoring function required under section 5330.
    Nineteen commenters responded to this proposed safety audit 
process, with most of them objecting that such audits amount to a 
``paperwork exercise'' that could be detrimental to the safe operation 
of a rail fixed guideway system. They argued that the ``safety audits'' 
and the ``biennial reviews'' were redundant and that auditing 
continuously was not necessary to 

[[Page 67040]]
ensure the safe operation of a rail fixed guideway system. Some of 
these commenters recommended that FTA adopt a system of random periodic 
checks similar to the APTA review process; others recommended that the 
oversight agency set the timeframe for safety audits by the transit 
agency. Still others recommended that the frequency of safety audits be 
linked to the age, type, and speed of the system, maintaining that 
different rail fixed guideway systems have different safety auditing 
needs.
    FTA Response. FTA had intended the ``safety audit'' process to be 
used in addition to the ``Internal Safety Audit Process'' in checklist 
number 9 of the APTA Guidelines, which apparently confused the 
commenters. To clarify our intent, we have withdrawn the proposed 
definition, ``safety audit,'' and now require the oversight agency to 
develop a process that complies with APTA's ``Internal Safety Audit 
Process.'' Although we make this change, we nevertheless encourage 
transit and oversight agencies to view safety and the safety auditing 
process as a routine, daily matter. As noted in the APTA Guidelines, 
``[t]he Internal Safety Audit Process * * * requires constant attention 
and activity.''
    To ensure that both transit and oversight agencies view the safety 
auditing process as a ``constant activity,'' we have retained the 
requirement for the transit agency to complete and submit safety 
auditing reports to the oversight agency, a requirement in the APTA 
Guidelines, which states that audit reports are to be used as a 
``management tool.'' FTA had proposed semi-annual reports, which most 
commenters objected to as a ``paperwork exercise.'' In response, we 
have changed the reporting time period from semi-annually to annually 
to reduce the paperwork burden.

J. Accident

    To focus oversight agency accident investigations on serious events 
that may show a systemic safety problem, FTA proposed to define 
``accident'' as ``any event involving the operation of a rail fixed 
guideway system resulting in: (1) [D]eath directly related to the 
event; (2) [i]njury requiring hospitalization within twenty-four hours 
of the event; (3) [a] collision, derailment, or fire causing property 
damage in excess of $25,000; or (4) [a]n emergency evacuation.'' The 
vast majority of commenters opposed this definition and recommended 
numerous ways to change it.--
    For instance, several commenters requested that FTA limit the 
definition to those events involving revenue service operations, thus 
excluding incidents occurring in rail yards. According to the 
commenters, these kinds of incidents are covered by OSHA rules; 
eliminating them from the rule, these commenters reasoned, would avoid 
duplicative and perhaps conflicting jurisdiction between the oversight 
agency and the State and Federal agencies responsible for enforcing 
OSHA regulations. --
    Some commenters recommended that any incident involving trespassers 
or employees be excluded from the definition. These commenters 
maintained that events involving trespassers would not necessarily 
indicate a systemic safety problem; in other words, it is impossible to 
protect against trespassers. Several commenters maintained that events 
involving employees should not be covered to avoid duplicative 
jurisdiction between the oversight agency and the State and Federal 
agencies regulating the workplace. --
    Other commenters recommended that FTA exclude certain kinds of 
personal injuries from the definition, stating that it is difficult, if 
not impossible, for a transit agency to monitor every slip, trip, or 
fall that occurs at a rail fixed guideway system. They further maintain 
that these kinds of injuries are not sufficiently serious to trigger an 
investigation by the oversight agency. --
    Still other commenters noted that, in most cases, a transit agency 
would be unable to determine whether a person was hospitalized as a 
result of the injury. Transit agency personnel operating in large 
metropolitan areas would be forced to contact dozens of hospitals, a 
task that would strain its resources; moreover, many hospitals do not 
release this kind of information to the public. --
    Several of these commenters recommended that FTA define accident, 
in part, as any injury in which a person is treated at the scene or is 
transported from the scene by medical personnel. This change would ease 
the administrative burden on the rail fixed guideway system, these 
commenters contended. --
    Many commenters strongly objected to the $25,000 property damage 
threshold, with most of them indicating that property damage estimates 
are subjective and become obsolete over time; others contended that 
$25,000 was too low. Some recommended that FTA annually adjust the 
dollar amount for inflation, and others recommended that the dollar 
amount be set by agreement between the oversight and transit agencies. 
--
    Several commenters recommended that FTA define an emergency 
evacuation, with one proposing that it be limited to circumstances in 
which emergency doors and exit routes are used, thus excluding 
instances when passengers are asked to leave a train disabled in a 
station. --
    FTA Response. In light of the comments, FTA has made several 
changes to the definition of accident. For instance, we have limited 
the definition to only those events that occur during the revenue 
service operation of the rail fixed guideway system, which eliminates 
from the rule any injuries or deaths to workers in rail yards. We made 
this change, not because these are unimportant events, but to avoid 
overlapping jurisdiction among State agencies. We do, however, 
encourage the oversight agency to establish a relationship with the 
State agency having jurisdiction over these matters and share 
information, thus making the workplace safer for rail fixed guideway 
system employees. --
    We disagree with commenters asking us to exclude incidents 
involving trespassers from the rule. Although we sympathize with the 
perspective of transit agencies, we believe that any death or injury 
requiring immediate medical treatment away from the scene of the event, 
which occurs while the rail fixed guideway system is in revenue 
service, should be investigated by the oversight agency. --
    We agree with those commenters who objected to the hospitalization 
requirement and have changed the rule to state that an accident has 
occurred if a person has been injured and ``immediately receives 
medical treatment away from the scene of the accident.'' This language 
is used in FTA's drug and alcohol rules, as well. --
    Although several commenters asked us to remove property damage 
dollar thresholds, we did not do so. Instead, we have raised the dollar 
threshold to $100,000, which should reduce the number of accidents 
involving property damage. --
    Last, we have removed the portion of the definition concerning 
emergency evacuations. In many instances, a serious event involving the 
evacuation of a mass transit vehicle also will involve a death, an 
injury requiring immediate medical treatment away from the scene, or 
more than $100,000 in property damage, any of which, by themselves, 
will trigger an oversight agency investigation. Hence, by making this 
change we have focused an oversight agency's resources on serious 
events involving the emergency evacuation of a mass transit vehicle. --

[[Page 67041]]


K. Hazardous Condition

    FTA proposed to define a ``hazardous condition'' as ``any condition 
which may endanger human life or property,'' and ``unacceptable 
hazardous condition'' as ``a hazardous condition determined to be an 
unacceptable hazardous condition using the hazard resolution matrix of 
the `Rail Safety Audit Manual' published by APTA.'' FTA further 
proposed to require the oversight agency to investigate only 
unacceptable hazardous conditions, whereas the transit agency was to 
correct or eliminate any hazardous condition. --
    Several commenters were confused by these two definitions and one 
maintained that the definitions were understandable only in conjunction 
with the APTA Guidelines checklist number 7. --
    Another commenter argued that FTA should not adopt the APTA 
Guidelines' hazard classification process. This commenter stated that

    [T]he Hazard Resolution Matrix contained in the APTA guidelines 
is an inadequate indicator of when an investigation should be 
triggered. As an example, it is well-known that currently-operating 
modern escalators frequently cause minor injuries to patrons 
(particularly children). Following the APTA guidelines, one would 
categorize the hazard associated with an operating escalator in 
Category III (marginal-minor injury). Furthermore, since escalators 
are usually operating more often than not, the hazard exists all the 
time the escalator is operating. Again following the APTA 
guidelines, the hazard probability would be in Category A--frequent-
likely to occur frequently (individual); continuously experienced 
(fleet/inventory). Under the Hazard Resolution Matrix of the APTA 
guidelines, this would be a Category III-A, which would be labeled 
`unacceptable.' Following the reasoning proposed in the NPRM, all 
escalators would continuously have to be corrected or eliminated by 
all transit agencies, and all escalator accidents investigated by 
the oversight agency. Since escalators cannot be corrected (at least 
so far no one has been successful in creating an escalator that 
doesn't have these hazards), all escalators would have to be 
eliminated from transit properties.

    --In contrast, another commenter supported the use of the APTA 
Guidelines Hazard Resolution Matrix because, according to this 
commenter, it has been adopted and practiced by more than 95 percent of 
the affected systems. --
    Several commenters objected to FTA's proposal to require transit 
agencies to ``correct or eliminate any hazardous condition,'' which 
they characterize as an ``impossible chore.'' In the words of one 
commenter, ``[i]f every transit agency was required to eliminate every 
condition that may cause minor injury * * *, all of its resources would 
be extended in attempting to eliminate these potential minor threats, 
with little resources left to run the transit system.'' One commenter 
recognized this problem also, and suggested that FTA require that 
hazardous conditions be corrected, eliminated, or controlled. One 
commenter maintained that the oversight agency should not be required 
to investigate any hazardous condition. --
    FTA Response. Although FTA has made some changes to the rule, we 
have not changed the definitions. The terms ``hazardous condition'' and 
``unacceptable hazardous condition'' must be read in conjunction with 
the APTA Guidelines, particularly with the hazard resolution process, 
checklist number 7. To identify hazards, FTA has mandated the use of 
this particular process by transit agencies, even if a transit agency 
has used MIL-STD 882B or 882C to develop its system safety program 
plan. We have mandated this process, despite some commenters who 
opposed its adoption, because it is widely used and accepted throughout 
the transit industry. --
    Also, the rule requires the oversight agency to investigate 
unacceptable hazardous conditions as well as accidents. Although at 
least one commenter opposed requiring the oversight agency to 
investigate unacceptable hazardous conditions, section 5330(c)(2)(B) 
requires the oversight agency to ``investigate hazardous conditions.'' 
To focus State resources on serious safety issues, FTA has interpreted 
section 5330 narrowly, thus requiring an oversight agency to 
investigate only ``unacceptable hazardous conditions.'' --
    We agree with the commenters who maintained that not all hazardous 
conditions can be corrected or eliminated. Risk cannot be taken out of 
life. Therefore, we require a transit agency to correct or eliminate 
any hazardous condition if possible, and if not, the transit agency 
must either minimize or control it. For instance, one commenter noted 
that escalators are hazardous conditions, which can be corrected only 
by eliminating the escalator. Under this rule, the transit agency is 
not required to eliminate escalators, but it is required to minimize or 
control the risks associated with escalators. A transit agency can take 
one or more of several actions to minimize these risks, such as 
installing an emergency shut-off switch, retrofitting the escalator 
with additional safety devices, posting instructions on how to avoid 
accidents on escalators, or developing educational programs for 
children on how to properly use escalators. Many transit agencies have 
addressed the safety issues of escalators, but we urge them to consider 
other measures to make escalators safer, especially for children. --

L. Investigations

    FTA proposed to require the oversight agency to develop its own 
investigation procedures and to investigate accidents, except those 
being investigated by the National Transportation Safety Board (NTSB), 
and all unacceptable hazardous conditions. --
    Twenty-seven commenters responded to issues arising from this 
proposal. Although one commenter stressed that the oversight agency 
should not conduct any investigations, most commenters focused on the 
oversight agency's role in investigating an ``accident'' or 
``unacceptable hazardous condition.'' The vast majority of these 
commenters maintained that the oversight agency should not conduct its 
own independent investigation, but should focus on the process used by 
the transit agency in conducting investigations. These commenters noted 
that the transit agency must be responsible for operating its own 
system; an independent investigation by the oversight agency may 
implicitly usurp the authority of the transit agency over safety and 
other operational matters, according to these commenters. Others 
insisted that although the oversight agency's primary responsibility 
was to ensure that the transit agency properly conducted 
investigations, it should nevertheless be authorized to investigate 
extraordinary events. One commenter maintained that the oversight 
agency should not investigate an ``accident'' or ``unacceptable 
hazardous condition'' unless the transit agency's investigation is 
inadequate. --
    FTA Response. Despite the opinion of at least one commenter, the 
oversight agency is required under section 5330 to investigate 
accidents and hazardous conditions. As discussed above, we proposed to 
define ``accident'' in a manner to focus the oversight agency's 
investigation on serious events of a systemic nature. Similarly, 
instead of proposing to require the oversight agency to investigate all 
``hazardous conditions,'' we proposed that it investigate only 
``unacceptable hazardous conditions.'' We have not changed this basic 
scheme. -
    Moreover, we believe that our proposal was misunderstood, and we 
seek now to clarify the role of the oversight agency in conducting 
investigations. The oversight agency is not only responsible for 
developing its own investigatory procedures, it is 

[[Page 67042]]
responsible for determining how it will investigate. An oversight 
agency may contract for this service; some may elect to use APTA's 
Panel of Inquiry, others may choose to use other experts. The oversight 
agency may allow the transit agency to conduct some or all 
investigations. The oversight agency may choose to investigate all 
``accidents'' and ``unacceptable hazardous conditions'' or investigate 
some and contract for the investigation of others. The rule is flexible 
in this regard, just as we had proposed in the NPRM. Although the 
examples set forth above are not exhaustive, ultimately, unless the 
NTSB is conducting an investigation, either the oversight agency or an 
entity acting on its behalf must investigate ``accidents'' and 
``unacceptable hazardous conditions.''
    We do, however, encourage the oversight agency to either directly 
or by contract conduct independent investigations. Moreover, we 
disagree strongly with commenters who maintain that the oversight 
agency should focus on the process used by the transit agency to 
conduct investigations. The purpose of this rule is to ensure that a 
rail fixed guideway system operates safely and that the systemic causes 
of ``accidents'' and ``unacceptable hazardous conditions'' are 
addressed; focusing on process in this context, therefore, is 
misplaced. Rather, the focus of the oversight agency should be to 
assist the transit agency in preventing ``accidents'' and ``hazardous 
conditions.''

M. Confidentiality of Oversight Agency Investigation Reports

    Several commenters to the ANPRM requested that we include a 
provision in the rule barring the discovery or the use in evidence of 
any investigative report compiled as a result of this rule. In the 
NPRM, we noted that section 5330 did not specifically address this 
matter, and hence, we doubted that we could make such a mandate. 
Nevertheless, we asked whether we should adopt a provision which would 
require that the oversight agency investigation reports be kept 
confidential.
    Almost every commenter favored the adoption of such a provision. 
One commenter wrote:

    [T]he investigations at rail fixed guideway systems are often 
confidential * * * and thus they are not subject to discovery or 
public disclosure. If the information gathered by the states becomes 
a public document, then the FTA will be building into this 
regulation a serious conflict between the state agencies and the 
[rail] fixed guideway systems. In order to ensure better gathering 
of information by the states, and to maintain unreserved cooperation 
with the local transit systems, it is strongly recommended that the 
information gathered by the states must be protected from 
disclosure.

    Another commenter wrote ``[w]e submit that a discovery exemption is 
critical to the efficient operation of the oversight agency, as it 
would protect the agency's limited staff and resources from the 
inundation of subpoenas and other discovery requests.'' Yet another 
commenter wrote that

    [The rail fixed guideway system] believes that FTA should 
provide protection for Attorney-Client privilege under the proposed 
rule to include investigative materials and materials pertaining to 
`hazardous condition' discussions or findings by the State oversight 
agency. If FTA does not have the statutory authority to provide such 
protection, it should require the States to do so. The loss of [the 
rail fixed guideway system's] Attorney-Client privilege over such 
documents would have a serious negative economic impact on third 
party litigation. -

    The remaining commenters maintained that although the issue is an 
important one, FTA should remain silent on it.
    FTA Response. FTA agrees strongly that the oversight agency 
investigation reports should be kept confidential; thus, we have added 
a provision to the rule permitting a State to require that these 
reports be kept confidential, and we encourage strongly that the State 
authorize the oversight agency to do so.

N. Certified Transit Safety Professional.

    FTA proposed to require the use of Certified Transit Safety 
Professionals primarily in response to comments to the ANPRM and 
related public hearings, which reflected concern throughout the transit 
industry about the expertise necessary to carry out an effective 
oversight program. These commenters maintained that an effective 
oversight program could not be achieved without the use of certified 
safety professionals.
    In response to these comments, the NPRM proposed to require both 
the oversight agency and the transit agency to use the services of a 
Certified Transit Safety Professional, either from within their own 
organizations or under contract, to comply with the requirements of the 
rule. A Certified Transit Safety Professional was defined as one who 
had ``successfully completed the Safety Professional Certification 
requirements established by the Board of Certified Safety 
Professionals, * * * or, a registered professional engineer in system 
safety.'' FTA also sought comment on whether it should require a 
Certified Transit Safety Professional to have a minimum number of years 
of experience in transit safety.
    Forty-seven comments were received on this matter, which was among 
the most controversial proposals in the NPRM. Although most commenters 
opposed the inclusion of this concept in the final rule, some 
recommended changes to the definition of certified transit safety 
professional. For instance, several commenters noted that organizations 
other than the Board of Certified Safety Professionals certify safety 
professionals, such as the World Safety Organization or the Federal 
Railroad Administration. Others recommended that the rule recognize 
experience equivalent to the training required by the Board of Safety 
Professionals. One commenter recommended that, in addition to 
certification, a Certified Transit Safety Professional be required to 
have a minimum number of years of experience.
    Several commenters opposing this proposal maintained that the Board 
of Certified Safety Professionals does not certify professionals in 
transit safety. The Board of Safety Professionals, however, did not 
oppose this proposal. Instead, they recommended that FTA require the 
certified transit safety professional's certification to be current. 
Several commenters noted that States do not certify professional 
engineers in system safety, although one commenter noted that the Board 
of Certified Safety Professionals 1993-1994 Directory listed 200 Safety 
Professionals certified in system safety.
    One commenter who opposed this proposal nevertheless recommended 
that FTA require safety professionals to complete FTA's Rail System 
Safety Course. Another commenter recommended that a peer group develop 
guidelines concerning the experience and training for transit safety 
professionals, which a transit agency could adopt. Other commenters 
objected to the proposal stating that such a training requirement would 
be too expensive.-
    FTA Response. In response to the overwhelming comments opposed to 
this proposal, FTA has removed the Certified Transit Safety 
Professional provision from the rule. We do, however, urge the States 
to develop their own criteria to ensure that both the transit and 
oversight agencies are using qualified professionals under this rule to 
ensure the safe operation of rail fixed guideway systems. In this 
regard, we recommend that safety professionals, at a minimum, have 
transit safety experience and complete the courses at the 
Transportation Safety Institute (TSI) sponsored by FTA applicable to 
rail transit systems. TSI offers the following 

[[Page 67043]]
courses: System Safety, Accident Investigation, System Security, and 
Emergency Management. FTA has provided training assistance to the 
transit industry in safety since 1976, and this program will be a major 
contribution to State Safety Oversight. Moreover, we urge States to 
require safety employees to be certified by the Board of Certified 
Safety Professionals, the World Safety Organization, or other 
comparable organization; safety professionals should possess a certain 
level of experience as well.

III. Section-by-Section Analysis

    Please note that issues addressed in the Section-by-Section 
Analysis may also be discussed in the Discussion of the Comments.

Subpart A--General Provisions

A. Purpose. (Sec. 659.1)

    This section explains that FTA is implementing the requirements of 
49 U.S.C. Sec. 5330, which requires a State to establish an agency to 
oversee the safety of rail fixed guideway systems. This rule directs 
the oversight agency to develop a system safety program standard and to 
require the transit agency to develop a system safety program plan that 
complies with the system safety program standard. In addition, the 
oversight agency must conduct safety reviews and investigations and 
ensure that the transit agency has developed and implemented a system 
safety program plan that complies with this rule and is effective.

B. Scope. (Sec. 659.3)

    This section explains that the rule applies only to States with 
rail fixed guideway systems that are not regulated by the FRA.

C. Definitions. (Sec. 659.5)

1. Accident
    An accident triggers an investigation by the oversight agency or 
its agent, and is defined as an event that occurs when the rail fixed 
guideway system is in revenue service and an individual dies or is 
injured and immediately receives medical treatment away from the scene; 
or a collision, derailment, or fire results in $100,000 in property 
damage.
    Injuries, deaths, or property damage that occur when the rail fixed 
guideway system is not in revenue service are excluded from the 
definition. Hence, under the rule, the oversight agency or its agent is 
not required to investigate these events, but may do so under its own 
authority.
    An ``individual'' means anyone, including a passenger, trespasser, 
employee, or other bystander.
2. APTA Guidelines
    The ``APTA Guidelines'' means the ``Manual for the Development of 
Rail Transit System Safety Program Plans'' published by the American 
Public Transit Association on August 20, 1991.
3. Contractor
    A ``contractor'' means an entity that performs tasks required under 
this part on behalf of the oversight or transit agency. A transit 
agency may not be a contractor for an oversight agency.
4. FTA
    The ``FTA'' means the Federal Transit Administration, an agency of 
the United States Department of Transportation.
5. Hazardous Condition
    ``Hazardous Condition'' means a condition that may endanger human 
life or property. It encompasses ``unacceptable hazardous conditions,'' 
defined below.
6. Investigation
    ``Investigation'' means the process used to determine the probable 
cause of the ``accident'' or ``unacceptable hazardous condition.'' It 
includes a review by the oversight agency of the transit agency's 
determination of the probable cause of an ``accident'' or 
``unacceptable hazardous condition.''
    An ``investigation'' may be conducted by the oversight agency 
itself or by some other entity acting on its behalf, or the 
investigation may be conducted by the transit agency. If the oversight 
agency chooses the latter method it must, at a minimum, review and 
approve the transit agency's findings of probable cause of the 
``accident'' or ``unacceptable hazardous condition.''
7. Oversight Agency
    The agency designated by the State or affected States to implement 
the requirements of this part.
8. Rail Fixed Guideway System
    ``Rail fixed guideway system'' means any light, heavy, or rapid 
rail system, monorail, inclined plane, funicular, trolley, or automated 
guideway that is included in FTA's calculation of fixed guideway route 
miles or receives funding under FTA's formula program for urbanized 
areas and is not regulated by the Federal Railroad Administration.
9. Safety
    ``Safety'' means freedom from danger; it includes freedom from 
unintentional as well as intentional acts.
10. Safety Review
    ``Safety review'' means a comprehensive review by the oversight 
agency of the transit agency's safety practices. It includes an 
analysis by the oversight agency of the efficacy of the transit 
agency's system safety program plan and a determination of whether the 
system safety program plan must be modified, changed, or updated. The 
safety review must be conducted at the rail fixed guideway system.
11. Security
    ``Security'' means freedom from intentional danger. Intentional 
danger includes criminal acts such as muggings, rapes, robberies, or 
terrorists acts, such as bombings, releases of poisonous gases, or 
kidnappings.
12. System Safety Program Plan
    ``System safety program plan'' means the written document developed 
by the transit agency in accordance with the requirements of the 
oversight agency's system safety program standard.
13. System Safety Program Standard
    ``System safety program standard'' means the document developed by 
the oversight agency that complies, at a minimum, with the APTA 
Guidelines and requires the rail fixed guideway system to address the 
personal security of its passengers and employees. It may contain more 
requirements than the APTA Guidelines. The transit agency must comply 
with this document when it develops its system safety program plan.
14. Transit Agency
    ``Transit agency'' means the entity operating the rail fixed 
guideway system.
15. Unacceptable Hazardous Condition
    An ``unacceptable hazardous condition'' is a particular kind of 
hazardous condition determined by using the Hazard Resolution Matrix 
contained in the APTA Guidelines at checklist number 7.
D. Withholding of Funds for Non-Compliance. (Sec. 659.7)
    This section is taken from section 5330, which authorizes FTA to 
withhold Federal funding from a State or an urbanized area in the 
State. In particular, FTA is authorized to withhold up to five percent 
of an affected urbanized area's apportionment if the State, in the 
opinion of FTA, is not in compliance or making adequate efforts to 
comply with the rule. The sanctions for non-compliance do not begin 
until September 30, 1997. In the event of non-compliance with the rule, 


[[Page 67044]]

the Administrator may withhold funds until the State comes into 
compliance.

Subpart B--The Role of the State

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

    This section directs the State to select an agency to oversee the 
rail fixed guideway system and prohibits the State from selecting the 
transit agency to perform this role. Paragraph (a) concerns rail fixed 
guideway systems that operate within only one State. In these 
instances, the State must designate a State agency to implement the 
rule. If the State chooses, this paragraph allows the State to 
designate an oversight agency for each rail fixed guideway system 
within the State. For instance, a State may wish to designate one 
agency for an historical trolley system and another for the remaining 
systems within the State. The rule is flexible in this regard and is 
written to accommodate those States that have established an oversight 
program under State law.
    For those States that have not established an oversight program and 
have more than one rail fixed guideway system within the State, we 
recommend that the State designate only one agency to implement the 
rule. This would save resources and ensure the consistent application 
of the rule.
    Paragraph (b) is directed to States that jointly operate a multi-
State rail fixed guideway system. Although we recommend that the 
affected States designate a single oversight agency, this paragraph 
allows them to designate more than one agency, other than the transit 
agency, to implement the rule. Moreover, this paragraph recognizes that 
a single oversight agency designated by the affected States will not be 
an agency of any particular State.

B. Confidential Accident Reports. (Sec. 659.23)

    This section permits the State to require the oversight agency to 
keep investigation reports confidential in civil litigation.

Subpart C--The Oversight Agency's Role

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

    This section directs the oversight agency to develop a system 
safety program standard that complies, at a minimum, with the American 
Public Transit Association's ``Manual for the Development of Rail 
Transit System Safety Program Plans'' (APTA Guidelines) available from 
the American Public Transit Association, 1201 New York Avenue, N.W., 
Washington, D.C. 20005-3917 or Office of Safety and Security, Federal 
Transit Administration, 400 Seventh Street, S.W., Washington, D.C. 
20590, and requires the transit agency to address the personal security 
of its passengers and employees.
    As discussed above, because the APTA Guidelines were derived from 
MIL-STD 882B, we believe that existing oversight agencies that have 
used MIL-STD 882B or its successor MIL-STD 882C to create their 
oversight programs should meet, if not exceed, the APTA Guidelines, 
although we recommend that these existing oversight agencies review 
their programs in this regard.
    This section further directs the oversight agency to develop a 
standard that would require the transit agency to address the personal 
security of its passengers and employees. In this regard, FTA has 
neither developed specifications nor adopted a standard for the 
oversight agency to follow. Instead, we have published, independently, 
two ``how to'' documents to be used by both the oversight and transit 
agencies in developing security standards and procedures. These 
documents, ``Transit Security Procedures Guide'' and ``Transit System 
Security Program Planning Guide,'' are available free of charge from 
the Office of Safety and Security, Federal Transit Administration, at 
the address noted above. Although the use of these documents is not 
mandated under the rule, we recommend strongly that every affected 
State and transit agency obtain copies and review them. As noted above, 
FTA also offers several courses on security through TSI. Moreover, we 
suggest that the oversight agency require the transit agency to address 
such criminal acts as terrorist activities and ``street crime'' such as 
muggings, rapes, drug dealings, etc.
    This section also allows the oversight agency to create a program 
that is more stringent than that required under the APTA Guidelines, 
although we urge those agencies not to adopt FRA-type regulations.

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

    This section establishes January 1, 1997, as the deadline for the 
implementation of the system safety program plan and requires the 
oversight agency to have initially reviewed and approved it before that 
date. It further establishes January 1, 1998, as the implementation 
date for the security provisions of the system safety program plan. It 
also requires the oversight agency to direct the transit agency to 
update the system safety program plan as necessary. The oversight 
agency may decide that it is necessary for a system safety program plan 
to be updated at certain intervals, or it may make a determination 
based on accident statistics or results from safety audits or reviews, 
for example. Should the oversight agency make such a determination, 
this section directs it to again review and approve the transit 
agency's updated system safety program plan.
    This section allows the oversight agency to determine whether the 
security provisions of the system safety program plan should be 
publicly available. FTA recommends strongly that the oversight agency 
prohibit the transit agency from publicly disclosing the security 
portions of the system safety program plan under any circumstance.

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

    Checklist number 9 of the APTA Guidelines requires the transit 
agency to draft a report summarizing the findings of its internal 
safety audit. This section of the rule requires the annual submission 
of that report to the oversight agency for its review.

D. Safety Reviews. (Sec. 659.37)

    At least every three years, the oversight agency must conduct an 
on-site safety review of the transit agency's implementation of its 
system safety program plan. After this review has been completed, the 
oversight agency must issue a report detailing its findings and 
recommendations, its analysis of the system safety program plan, and 
its determination whether the safety program plan should be updated or 
changed.

E. Transit Agency Report on Accidents and Unacceptable Hazardous 
Conditions. (Sec. 659.39)

    To investigate ``accidents'' and ``unacceptable hazardous 
conditions'' as required by section 5330, the oversight agency must 
know about them. This section directs the oversight agency to require 
the transit agency to report ``accidents'' and ``unacceptable hazardous 
conditions'' within the time specified by the oversight agency.

F. Investigations. (Sec. 659.41)

    As discussed above in the Discussion of the Comments, the oversight 
agency is not required to conduct the investigation itself, but may do 
so through another entity such as a 

[[Page 67045]]
contractor or even the transit agency. The oversight agency, however, 
must decide how it is going to conduct an investigation and establish 
the procedures it or the entity acting on its behalf will use.
    There are numerous ways the oversight agency may comply with this 
requirement. For instance, the oversight agency may establish one set 
of procedures to investigate accidents and another to investigate 
unacceptable hazardous conditions. The oversight agency may use a 
contractor, such as the APTA Panel of Inquiry, to investigate certain 
kinds of accidents and its own staff to investigate others.
    The rule is intentionally flexible to allow the oversight agency to 
adapt an oversight program to the needs of the rail fixed guideway 
systems within the State's jurisdiction.

G. Corrective Actions. (Sec. 659.43)

    Section 659.41 requires the oversight agency to investigate 
``unacceptable hazardous conditions.'' This section directs the 
oversight agency to require the transit agency to develop a corrective 
action plan to eliminate, minimize, or control investigated hazardous 
conditions in accordance with the approved corrective action plan and 
within the time period specified by the oversight agency.

H. Oversight Agency Report to the Federal Transit Administration. 
(Sec. 659.45)

    This section requires three kinds of reports: initial, annual, and 
periodic. The initial submission contains information that will not 
change frequently, such as the name and address of the oversight agency 
and the transit agencies it oversees, a copy of the system safety 
program standard, and a description of the oversight agency's 
procedures for conducting investigations and ensuring that the transit 
agency has undertaken appropriate corrective actions. This report must 
be updated only when some of the information within it changes.
    The annual submission describes the activities of the oversight 
agency for the previous twelve months, including any determinations by 
the oversight agency of the probable cause of ``accidents'' and 
``unacceptable hazardous conditions,'' if it can do so and protect the 
confidentiality of investigation reports. This section allows an 
oversight agency required to submit annual reports to the State to 
submit the same report to FTA, if it contains all the necessary 
information.
    Last, this section allows FTA to periodically ask the oversight 
agency to submit certain kinds of information such as the status 
reports on ``accidents,'' ``hazardous conditions,'' and corrective 
action plans. These reports must be submitted only upon FTA's request.

I. Use of Contractors. (Sec. 659.47)

    This section expressly allows the oversight or transit agency to 
use contractors to perform certain tasks required under the rule. The 
agencies may use a contractor to perform some or all of these tasks. 
For instance, an oversight agency may use a contractor to conduct only 
accident investigations, while another may use a contractor solely to 
conduct safety reviews. A transit agency may not be a contractor for 
the oversight agency, however.

J. Certification of Compliance. (Sec. 659.49)

    This section requires the oversight agency to initially certify 
before January 1, 1997, that it has complied with the rule. Thereafter, 
the oversight agency is required to certify annually that it is in 
compliance with the rule.

IV. Economic Analysis

    FTA has evaluated the industry-wide costs and benefits of the rule, 
``Rail Fixed Guideway Systems; State Safety Oversight,'' which requires 
a State to develop, through an oversight agency, a program to oversee 
the safety of rail fixed guideway systems. At least 19 States will be 
required to create an oversight agency that must:
    <bullet> Develop a System Safety Program Standard which includes 
provisions addressing security.
    <bullet> Approve the transit agency's initial system safety program 
plan.
    <bullet> Conduct safety reviews.
    <bullet> Establish investigation procedures.
    <bullet> Investigate accidents and unacceptable hazardous 
conditions.
    <bullet> Ensure the transit agency complies with the oversight 
agency's system safety program standard.
    <bullet> Review corrective action plans.
    <bullet> Report to FTA.
    At least 33 transit agencies must:
    <bullet> Develop a System Safety Program Plan and update it, as 
necessary.
    <bullet> Prepare annual audit reports.
    <bullet> Conduct safety audits.
    <bullet> Classify hazardous conditions according to the APTA Hazard 
Resolution Matrix.
    <bullet> Report accidents and unacceptable hazardous conditions to 
the oversight agency.
    <bullet> Prepare corrective action plans.
    <bullet> Handle hazardous conditions according to approved 
corrective action plans.
    <bullet> Maintain safety data.
    Generally, in analyzing the costs of this rule, the Regulatory 
Evaluation considered only those activities required by the rule. For 
those States and transit agencies that have already established a 
program similar to the one required by the rule, the Regulatory 
Evaluation considered only those activities necessary to bring these 
programs into compliance with the rule. Year One costs are estimated to 
be approximately $336,000, the lowest for any single year. This is 
because the costs incurred in Year One are generally limited to 
activities of the oversight agencies and the FTA. Total costs for the 
first ten years are estimated to be approximately $9.1 million.
    The estimated benefits of the rule are assumed to take full effect 
in the third year of implementation, 1998. Therefore, the estimated 
fatalities and injuries averted are based on an eight-year period. For 
this period there would be 16 fatalities and 1,528 injuries averted. 
Based on the Department's Willingness to Pay Threshold, the total 
benefit of the rule is approximately $107 million over a ten-year 
period.

V. Regulatory Process Matters

A. Executive Order 12866

    FTA has evaluated the costs and benefits to the States of creating 
an oversight program to oversee the safety of rail fixed guideway 
systems and has determined that this rule is a major rule under 
Executive Order 12866 because it affects State and local governments.

B. Departmental Significance

    This proposed rule is a ``significant regulation'' under the 
Department's Regulatory Policies and Procedures, because it changes an 
important Departmental policy. That policy change requires the States 
to oversee the safety of rail fixed guideway systems, something the 
Federal government has never before required.

C. Regulatory Flexibility Act

    In accordance with 5 U.S.C. 603(a), FTA has evaluated the effects 
of this proposed rule on small entities. Based on this evaluation, FTA 
hereby certifies that this action will not have a significant economic 
impact on a substantial number of small entities because the affected 
transit agencies will in most cases be large.

D. Paperwork Reduction Act

    The information collection requirements in this rule have been 
reviewed and approved by the Office of Management and Budget under OMB 
#2132-0558.

[[Page 67046]]


E. Executive Order 12612

    We have reviewed this rule under the requirements of Executive 
order 12612 on Federalism. FTA has determined that since this rule has 
significant Federalism implications it warrants a Federalism 
assessment. We note, however, that this rulemaking is mandated by 49 
U.S.C. 5330, which requires a State to create an oversight agency to 
oversee the safety of rail fixed guideway systems.
    In considering the Federalism implications of the proposed rule, 
FTA has focused on several key provisions of Executive order 12612.
    Necessity for action. This rule is mandated by law, which requires 
that rail fixed guideway systems be subject to State oversight. 
Approximately twenty-one States have rail fixed guideway systems 
operating within their jurisdictions. Of those, only five States have 
established a State oversight program.
    Consultation with State and local governments. FTA's mission is to 
provide financial assistance to mass transportation systems throughout 
the nation, thus providing grants to State and local governments. 
Because this rule will affect almost half of the States as well as many 
local governments, we published an ANPRM on June 25, 1992, at 57 FR 
28572, to solicit the views of State and local governments. In 
addition, we held three public hearings in conjunction with the ANPRM. 
Also, FTA published an NPRM on December 9, 1993, at 58 FR 64855, on 
which numerous State and local governmental agencies commented. 
Moreover, we held a public hearing on the NPRM on March 8, 1994, in 
conjunction with an American Public Transit Association conference, 
thus allowing more State and local agencies to participate in the 
development of this rule. In short, we actively sought the views and 
comments of the affected States.
    Need for Federal action. This rule responds to a Congressional 
mandate but is designed to give a State maximum flexibility in 
designing its own oversight program.
    Authority. The statutory authority for this rule is discussed 
elsewhere in this preamble.
    Pre-emption. This rule does not, as such, pre-empt State or local 
law. There may be instances in which a State or local agency faces a 
conflict between compliance with the rule and State and local 
requirements. Because compliance with the rule is a condition of 
Federal financial assistance, State and local governments have the 
option of not seeking the Federal funds if they choose not to comply 
with this rule.

F. National Environmental Policy Act

    FTA has determined that this rule has no environmental 
implications. Its purpose is to create a State oversight program 
designed to oversee the safety of rail fixed guideway systems.

G. Energy Impact Implications

    This regulation does not affect the use of energy because it 
creates a State oversight program designed to oversee the safety of 
rail fixed guideway systems.

List of Subjects in 49 CFR Part 659

    Grant programs--transportation, Incorporation by reference, Mass 
transportation, Reporting and recordkeeping requirements, Safety, 
Security, and Transportation.
    Accordingly, for the reasons cited above, the agency amends title 
49 of the Code of Federal Regulations by adding a new part 659, to read 
as follows:

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

Subpart A--General Provisions

Sec.
659.1  Purpose.
659.3  Scope.
659.5  Definitions.
659.7  Withholding of funds for non-compliance.

Subpart B--The Role of the State

659.21  Designation of oversight agency.
659.23  Confidential investigation reports.

Subpart C--The Oversight Agency's Role

659.31  The system safety program standard.
659.33  System safety program plans.
659.35  Transit agency annual audit reports.
659.37  Safety reviews.
659.39  Transit agency report on accidents and unacceptable 
hazardous conditions.
659.41  Investigations.
659.43  Corrective actions.
659.45  Oversight agency report to the Federal Transit 
Administration.
659.47  Use of contractors.
659.49  Certification of compliance.

Appendix to Part 659--Sample Certification of Compliance.

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

Subpart A--General Provisions


Sec. 659.1  Purpose.

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


Sec. 659.3  Scope.

    This part applies to a State that has within its boundaries a rail 
fixed guideway system not regulated by the Federal Railroad 
Administration (FRA).


Sec. 659.5  Definitions.

    As used in this part--
    Accident means any event involving the revenue service operation of 
a rail fixed guideway system if as a result:
    (1) An individual dies;
    (2) An individual suffers bodily injury and immediately receives 
medical treatment away from the scene of the accident; or
    (3) A collision, derailment, or fire causes property damage in 
excess of $100,000.
    APTA Guidelines means the American Public Transit Association's 
``Manual for the Development of Rail Transit System Safety Program 
Plans,'' published on August 20, 1991.
    Contractor means an entity that performs tasks required by this 
part on behalf of the oversight or transit agency. The transit agency 
may not be a contractor for the oversight agency.
    FTA means the Federal Transit Administration, an agency within the 
U.S. Department of Transportation.
    Hazardous condition means a condition that may endanger human life 
or property. It includes unacceptable hazardous conditions.
    Investigation means a process to determine the probable cause of an 
accident or an unacceptable hazardous condition; it may involve no more 
than a review and approval of the transit agency's determination of the 
probable cause of an accident or unacceptable hazardous condition.
    Oversight agency means the entity, other than the transit agency, 
designated by the State or several States to implement this part.
    Rail fixed guideway system means any light, heavy, or rapid rail 
system, monorail, inclined plane, funicular, trolley, or automated 
guideway that is:
    (1) Included in FTA's calculation of fixed guideway route miles or 
receives funding under FTA's formula program for urbanized areas (49 
U.S.C. 5336); and
    (2) Not regulated by the Federal Railroad Administration.
    Safety means freedom from danger.
    Safety review means a formal, comprehensive, on-site examination by 
the oversight agency of a transit agency's safety practices to 
determine whether they comply with the policies and procedures required 
under the transit agency's system safety program plan.
    Security means freedom from intentional danger.
    System safety program plan means a document adopted by the transit 
agency 

[[Page 67047]]
detailing its safety policies, objectives, responsibilities, and 
procedures.
    System safety program standard means the standard developed and 
adopted by the State oversight agency which, at a minimum, complies 
with the APTA Guidelines and which addresses personal security.
    Transit agency means an entity operating a rail fixed guideway 
system.
    Unacceptable hazardous condition means a hazardous condition 
determined to be an unacceptable hazardous condition using the APTA 
Guidelines' Hazard Resolution Matrix (APTA Guidelines, checklist number 
7).


Sec. 659.7  Withholding of funds for non-compliance.

    The Administrator of the FTA may withhold up to five percent of the 
amount required to be apportioned for use in any State or affected 
urbanized area in such State under FTA's formula program for urbanized 
areas for any fiscal year beginning after September 30, 1997, if the 
State in the previous fiscal year has not met the requirements of this 
part and the Administrator determines that the State is not making 
adequate efforts to comply with this part.

Subpart B--The Role of the State


Sec. 659.21  Designation of oversight agency.

    (a) For a transit agency or agencies operating within a single 
State, the State must designate an agency of the State, other than a 
transit agency, to serve as the oversight agency and to implement the 
requirements of this part.
    (b) For a transit agency operating a system within more than one 
State, those States may designate a single entity, other than the 
transit agency, to implement the requirements of this part.


Sec. 659.23  Confidential investigation reports.

    The State may prohibit an investigation report that may be prepared 
by the oversight agency from being admitted into evidence or used in a 
civil action for damages resulting from a matter mentioned in the 
report.

Subpart C--The Oversight Agency's Role


Sec. 659.31  The system safety program standard.

    (a) The oversight agency must develop and adopt a system safety 
program standard that, at a minimum--
    (1) Complies with the American Public Transit Association's 
``Manual for the Development of Rail Transit System Safety Program 
Plans'' (APTA Guidelines) published on August 20, 1991, hereby 
incorporated by reference; and
    (2) Requires the transit agency to address the personal security of 
its passengers and employees.
    (b) The APTA Guidelines specify procedures for developing a system 
safety program plan, generally discuss the principles of system safety, 
and specifically address certain issues critical to the safe operation 
of a rail fixed guideway system.
    (c) The incorporation by reference of the APTA Guidelines has been 
approved by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR Part 51. Copies of the APTA Guidelines may be 
obtained from the American Public Transit Association, 1201 New York 
Avenue, N.W., Washington D.C. 20005-3917, (202) 893-4000. The 
Guidelines may be inspected at, and are available from the Federal 
Transit Administration, Office of Safety and Security, 400 7th Street, 
S.W., Washington, D.C. 20590, and at the Office of the Federal 
Register, 800 North Capitol Street, N.W., Washington, D.C.


Sec. 659.33  System safety program plans.

    (a) Except as provided in Sec. 659.33(b), the oversight agency must 
require the transit agency to--
    (1) Implement, beginning on January 1, 1997, a system safety 
program plan conforming to the oversight agency's system safety program 
standard; and
    (2) Approve in writing before January 1, 1997, the transit agency's 
system safety program plan.-
    (b) The oversight agency must require the transit agency to--
    (1) Implement, beginning on January 1, 1998, the security portions 
of its system safety program plan; and
    (2) Approve in writing before January 1, 1998, the security 
portions of the transit agency's system safety program plan.
    (c) After December 31, 1996, the oversight agency must review and 
approve, in writing, the transit agency's system safety program plan, 
as necessary, and require the transit agency to update its system 
safety program plan, as necessary.
    (d) The oversight agency may prohibit a transit agency from 
publicly disclosing the security aspects of the system safety program 
plan.


Sec. 659.35  Transit agency annual audit reports.

    The oversight agency must--
    (a) Require that the transit agency submit, annually, a copy of the 
annual safety audit report prepared by the transit agency as a result 
of the Internal Safety Audit Process (APTA Guidelines, checklist number 
9); and
    (b) Review the annual safety audit reports prepared by the transit 
agency.


Sec. 659.37  Safety reviews.

    At least every three years the oversight agency must conduct an on-
site safety review of the transit agency's implementation of its system 
safety program plan and prepare and issue a report containing findings 
and recommendations resulting from that review, which, at a minimum, 
must include an analysis of the efficacy of the system safety program 
plan and a determination of whether it should be updated.


Sec. 659.39  Transit agency report on accidents and unacceptable 
hazardous conditions.

    The oversight agency must require that the transit agency report 
accidents and unacceptable hazardous conditions to the oversight agency 
within a specified period of time.-


Sec. 659.41  Investigations.

    The oversight agency must--
    (a) Establish procedures to investigate accidents and unacceptable 
hazardous conditions.
    (b) Unless the National Transportation Safety Board has 
investigated or will investigate an accident, the oversight agency must 
investigate accidents and unacceptable hazardous conditions occurring 
at a transit agency under its jurisdiction.


Sec. 659.43   Corrective actions.

    The oversight agency must require the transit agency to minimize, 
control, correct, or eliminate any investigated hazardous condition 
within a time period specified by and in accordance with a corrective 
action plan approved by the oversight agency.


Sec. 659.45  Oversight agency report to the Federal Transit 
Administration. -

    (a) Initial submissions. Before January 1, 1997, the oversight 
agency must submit to FTA the following information, which must be 
updated as necessary: -
    (1) The name and address of the oversight agency; -
    (2) The name(s) and address(es) of the transit agency or agencies 
subject to the oversight agency's jurisdiction under this part; and -
    (3) A written description of the oversight agency's oversight 
program including the following information: -
    (i) A copy of its system safety program standard; -
    (ii) Its procedures or process for reviewing and approving the 
transit agency's system safety program plan; -

[[Page 67048]]

    (iii) Its investigatory procedures; and -
    (iv) Its procedures for ensuring that appropriate corrective 
actions have been taken by the transit agency to correct, eliminate, 
minimize, or control investigated hazardous conditions. -
    (b) Annual submissions. Before January 1 of each year, the 
oversight agency must submit to FTA a publicly available annual report 
summarizing its oversight activities for the preceding twelve months, 
including a description of the most common probable causal factors of 
accidents and unacceptable hazardous conditions. -
    (c) Periodic submissions. Status reports of accidents, hazardous 
conditions, and corrective action plans must be forwarded to the FTA 
upon request. -
    (d) Addresses. Reports and annual summaries must be sent to: 
Federal Transit Administration, Office of Safety and Security, 400 7th 
Street, S.W., Washington, D.C. 20590.


Sec. 659.47  Use of contractors. -

    (a) The oversight agency may use a contractor to---
    (1) Develop a system safety program standard; -
    (2) Review system safety program plans; -
    (3) Review annual audit reports; -
    (4) Conduct safety reviews; -
    (5) Prepare safety review findings; -
    (6) Establish investigation procedures; -
    (7) Conduct investigations; -
    (8) Review corrective action plans; and/or -
    (9) Prepare initial or annual submissions to FTA. -
    (b) The oversight agency may allow a transit agency to use a 
contractor to---
    (1) Develop or update a system safety program plan; -
    (2) Prepare annual audit reports; and/or -
    (3) Develop a corrective action plan.


Sec. 659.49  Certification of compliance. -

    (a) Before January 1, 1997, and annually thereafter, the oversight 
agency must certify to the FTA that it has complied with the 
requirements of this part. Each certification shall comply with the 
applicable sample certification provided in the appendix to this part. 
Each certification shall be sent to: Federal Transit Administration, 
Office of Safety and Security, 400 7th Street, S.W., Washington, D.C. 
20590. -
    (b) Each certification must be signed by an official authorized by 
the oversight agency and must comply with the applicable sample 
certification provided in the appendix to this part.

Appendix to Part 659--Sample Certification of Compliance -

    This appendix contains an example of certification language. - -
    I, (name), (title), certify that (name of the oversight agency) 
has implemented a State oversight program that meets the 
requirements of 49 CFR part 659 and further certify that I have no 
conflict of interest with any rail fixed guideway system overseen as 
a result of 49 CFR part 659, nor does (name of the oversight agency) 
and its contractors.

    Issued: December 18, 1995. ----- ------ ------
Gordon J. Linton,
Administrator.
[FR Doc. 95-31159 Filed 12-26-95; 8:45 am]
BILLING CODE 4910-57-U