Transportation
MARCH 2004
FTA Proposes Revisions to State Safety
Oversight Regulations
The Federal Transit Administration (“FTA”) has
issued a notice of proposed rulemaking to revise its
current regulations for state oversight of rail transit
safety and security programs, 49 CFR Part 659 (the
“Proposed Rule”).1 The purpose of the Proposed
Rule is to improve the performance of the state safety
oversight program and affect the following
outcomes:
n
enhanced program efficiency and authority;
n
increased responsiveness to recommendations and
emerging safety and security issues;
n
improved consistency in the collection and
analysis of accident causal factors through
increased coordination with other Federal
reporting and investigation programs; and
n
improved performance of the hazard management
process.2
Comments on the Proposed Rule must be submitted
by June 7, 2004. This Alert summarizes some of the
more significant revisions to Part 659 discussed in
the Proposed Rule.
NO RELIANCE ON THE APTA MANUAL
The current version of Part 659 incorporates the
American Public Transportation Association’s
Manual for the Development of Rail Transit System
Safety Program Plans (the “APTA Manual”) by
reference as a national baseline standard for safety.
However, in the Proposed Rule, FTA indicates that
although the APTA Manual is a “valuable tool” for
rail transit agencies in the development of system
safety program plans, the APTA Manual does not
assist in state compliance with rule requirements.
Therefore, FTA proposes to remove reference to the
APTA Manual from Part 659.3
In lieu of the APTA Manual as the baseline standard,
the Proposed Rule provides minimum requirements
for the development and administration of a state
safety oversight program. Specifically, the Proposed
Rule includes ten (10) required elements for a system
safety program standard. Additionally, the Proposed
Rule identifies 21 elements for a rail transit agency’s
system safety program plan. In developing these
minimum requirements, FTA used the APTA Manual
and other materials developed by state oversight
agencies. Despite the removal of references to the
APTA Manual, FTA states that it supports continued
use of the APTA Manual to develop system safety
program plans and intends to collaborate with APTA,
state oversight agencies and rail transit agencies to
develop future implementation guidelines.4
DESIGNATION OF OVERSIGHT AGENCY
According to FTA’s current interpretation of Part
659, a state is not required to designate an oversight
agency during the planning, design and construction
of a new start rail system. In the Proposed Rule, FTA
indicates that it is important to ensure that all
oversight program requirements are met by the
startup of operations. The Proposed Rule would
require the designation of a state oversight agency, at
a minimum, to coincide with the execution of any
grant agreement between FTA and the rail transit
1 Rail Fixed Guideway Systems; State Safety Oversight, 69 Fed. Reg. 11217 (2004) (to be codified at 49 CFR Part
659) (proposed Mar. 9, 2004)
2 Id. at 11220.
3 Id.
4 Id. at 11222-23.
Kirkpatrick & Lockhart LLP
agency sponsoring the new start project (most likely
at the time of execution of a Full Funding Grant
Agreement). Upon designation, a state would have
60 days to provide FTA with a designation
submission that includes specific information
required by Part 659. In the event that a new start
project is not funded by FTA grants, but intends to
receive FTA funding pursuant to FTA’s formula
program for urbanized areas (49 U.S.C. § 5336), the
state must designate an oversight agency within
60 days after the rail transit agency declares to FTA
its intent to receive formula funding (usually via the
state transportation planning process).5
SYSTEM SECURITY PLANS
In the Proposed Rule, FTA states that it is concerned
with the need to protect security information from
public disclosure. Currently, the system security plan
and system safety program plan may be combined
into a single system safety and security program plan
which is generally submitted to the oversight agency
via hardcopy or electronic mail.
The Proposed Rule would require a rail transit
system to develop a separate system security plan
that would have to comply with certain minimum
requirements identified in the Proposed Rule.
Additionally, FTA would require all oversight agency
reviews of the security plans to occur on-site at the
rail transit agency, or according to another procedure
developed by the rail transit agency in the system
security plan, in order to maintain confidentiality.6
ANNUAL REVIEW OF SYSTEM SAFETY
PROGRAM PLANS AND SYSTEM
SECURITY PLANS
FTA does not believe that the current regulation
provides adequate guidance on the frequency with
which rail transit agencies should review system
safety program plans and system security plans. As a
result, FTA believes that rail transit agencies often
are implementing procedures that are not reflected in
the system safety program plan or system security
plan.
The Proposed Rule would require the state oversight
agency to oversee an annual review by the rail transit
agency of its system safety program plan and system
security plan. Any modifications or updates
necessitated as a result of such annual review would
be subject to state oversight agency review and
approval.7
5
6
7
8
INTERNAL SAFETY AND SECURITY REVIEW
OF SAFETY AND SECURITY PROGRAMS
In the Proposed Rule, FTA discusses its concerns
with the failure of the current regulation to
adequately support state oversight agency authority
to monitor implementation of the system safety
oversight program. Specifically, FTA states that
state oversight agencies have complained about the
difficulty of obtaining from rail transit agencies
schedules, checklists and procedures for conducting
internal audit and safety reviews. State oversight
agencies also have stated that since the current rule
only requires the rail transit agency to provide an
annual report documenting its performance of the
internal safety audit process, it is difficult for the
state oversight agency to actively monitor the rail
transit agency’s compliance with the internal safety
audit process.
FTA proposes to require rail transit agencies to
conduct ongoing internal safety and security reviews
of their safety and security programs. The transit
system’s internal safety audit process would be
documented in the system safety program plan and/
or system security plan and reviewed and approved
by the state oversight agency. The Proposed Rule
also would require the internal safety audit process
to: 1) include an explanation of the methodology
used by the rail transit system to evaluate compliance
with the system safety program plan and system
security plan; and 2) ensure that all elements of the
system safety program plan and system security plan
are reviewed on an ongoing basis over a three-year
cycle. Under the Proposed Rule, the rail transit
agency would be required to notify the state
oversight agency 30 days before conducting an
internal safety and security review. Additionally,
FTA would require that the state oversight agency
review and approve an annual report on rail transit
agency internal safety and security reviews and
require the executive director or general manager of
the rail transit agency to submit a letter certifying
compliance with its system safety program plan and
system security plan.8
OVERSIGHT OF HAZARD MANAGEMENT
ACTIVITIES
The Proposed Rule also includes revisions to the
hazard management process. FTA asserts that the
Proposed Rule would clarify the state oversight
agency’s role in the oversight of hazard management
Id. at 11221-22.
Id. at 11223.
Id.
Id. at 11224.
Kirkpatrick & Lockhart LLP
2
activities performed by the rail transit agency. The
state oversight agency would require the rail transit
agency to develop a hazard management process
that complies with certain minimum requirements
specified in the Proposed Rule. However, FTA
would not require all rail transit agencies to conform
to a uniform hazard management methodology or a
uniform methodology for the ongoing
communication of the results of the hazard
management process. With the exception of certain
minimum requirements, such methodologies would
be subject to the discretion of the individual rail
transit systems and state oversight agencies. The
hazard management process would be submitted as
part of the system safety program plan and reviewed
and approved by the state oversight agency.9
The Proposed Rule also includes revisions to the
requirements for corrective action plans. In the
Proposed Rule, FTA specifies the occurrences for
which the state oversight agency must require the
rail transit agency to develop a corrective action
plan. The Proposed Rule also would require the rail
transit agency to include the action to be taken and
schedule for implementation in the corrective action
plan. The corrective action plan would be subject to
review and approval by the state oversight agency
and the state oversight agency would be required to
monitor implementation of each corrective action
plan. The Proposed Rule also would require the rail
transit agency to verify that the corrective action
plan has been implemented and, upon request by the
state oversight agency, provide periodic reports
detailing the status of incomplete corrective
actions.10
ACCIDENT NOTIFICATION AND INVESTIGATION
THRESHOLDS
FTA believes that there are inconsistencies in
accident notification and investigation thresholds
between the state safety oversight program and FTA’s
National Transit Database (“NTD”) reporting
thresholds. FTA has identified a range of thresholds,
currently used for major accident reporting in the
NTD, that FTA believes are significant to the state
safety oversight program. The Proposed Rule
specifies events that require the rail transit agency to
notify the state oversight agency within two (2) hours
and accidents that require, at a minimum,
investigation by the state oversight agency.11
CONCLUSION
This summary of some of the more significant
revisions to Part 659 discussed in the Proposed Rule
is not exhaustive. Representatives from state
oversight agencies, rail transit agencies and other
interested parties should review and analyze the
Proposed Rule in its entirety. If the Proposed Rule
becomes final, the revisions to Part 659 will have
significant implications for state safety oversight
programs at both the state and rail transit agency
level.
TRACIE D. SPEAR
202.778.9390
tspear@kl.com
9 Id. at 11224-25.
10 Id. at 11226.
11 Id. at 11225-26.
FOR FURTHER INFORMATION, please consult one of the lawyers listed below:
Boston
Harrisburg
Pittsburgh
Washington
Jeffrey S. King
Carleton O. Strouss
Theodore A. McConnell
Kevin M. Sheys
Edward J. Fishman
Tracie D. Spear
Janie C. I. Sheng
Brendon P. Fowler
617.261.3179
717.231.4503
412.355.6566
202.778.9290
202.778.9456
202.778.9390
202.778.9855
202.778.9237
jking@kl.com
cstrouss@kl.com
tmcconnell@kl.com
ksheys@kl.com
efishman@kl.com
tspear@kl.com
jsheng@kl.com
bfowler@kl.com
®
Kirkpatrick & Lockhart LLP
Challenge us.
®
www.kl.com
BOSTON
n
DALLAS
n
HARRISBURG
n
LOS ANGELES
n
MIAMI
n
NEWARK
n
NEW YORK
n
PITTSBURGH
n
SAN FRANCISCO
n
WASHINGTON
............................................................................................................................................................
This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein
should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.
© 2004 KIRKPATRICK & LOCKHART LLP.
ALL RIGHTS RESERVED.