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Docket Clerk
Central Docket Office
Department of Transportation
PL-401
400 Seventh Street, S.W.
Washington, DC 20590
RE: Docket Number FTA-2004-17196
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Dear Docket Clerk:
The American Public Transportation Association (APTA) is pleased to respond
to the Federal Transit Administration's (FTA) Notice of Proposed Rulemaking
(NPRM) on state safety oversight of rail fixed guideway systems.
About APTA
APTA is a nonprofit international trade association of over 1,500 public
and private member organizations including transit systems and commuter railroads;
planning, design, construction and finance firms; product and service providers;
academic institutions, and state associations and departments of transportation.
APTA members serve the public interest by providing safe, efficient and economical
transit services and products. Over ninety percent of persons using public
transportation in the United States and Canada are served by APTA members.
Background
On March 9, 2004, FTA published a notice of proposed rulemaking (NPRM) proposing
to revise its rule on state safety oversight of rail fixed guideway systems
at 49 CFR Part 659. FTA proposes to clarify and improve Part 659. In addition,
FTA plans to incorporate previously issued guidance in this area as well as
new concerns for security and emergency preparedness.
General Comments
Lack of Industry Involvement
Regrettably, in contrast to initial understandings on how FTA's review of
the state safety oversight program would be conducted, the transit industry
was not involved in FTA discussions with state oversight agencies in meetings
leading up to the promulgation of the NPRM. In general, the transit industry
was kept separate from those interactions, and was not involved in monthly
teleconferences on these issues. In our view, such discussions and interaction
would have been extremely useful given the industry's experience and practice
in this area.
Extension of Comment Period
Given the complexity and potential impact of this rule change, and our concern
about our lack of involvement in the process leading up to the NPRM, APTA
respectfully requests that the comment period on the NPRM be extended. Further,
we have heard from certain of our members that they have been focused on other
safety and security concerns in the last few months, largely at the urging
of the Department of Homeland Security. For these reasons, the transit agencies
believe that they have not had an adequate opportunity to analyze the NPRM.
Should a formal extension of the comment period not be granted, we would appreciate
FTA accepting comments as long as possible so that they may be considered
as part of the record.
Retention of APTA Manual
Although we feel an extension of the comment period would be warranted, APTA
will nonetheless here comment on the NPRM. Most critically, APTA is concerned
that FTA is proposing to eliminate from its rule the incorporation by reference
of the APTA Manual for the Development of Rail Transit System Safety Program
Plans (APTA Manual), which has formed the basis of FTA's state safety oversight
program since issuance of the final rule in 1995. Since the implementation
of the initial program, APTA has grown its standard-setting and audit programs,
and continues to review and update as appropriate those programs to ensure
that they remain relevant and effective. Continuing to incorporate the APTA
Manual by reference would ensure that the regulation would continue to reflect
the latest circumstances and standards. If, as the NPRM proposes, the concepts
in the Manual are simply incorporated into the rule and frozen in place, ongoing
changes and revisions will be difficult to implement, given the delays associated
with the formal rulemaking process. In short, APTA strongly suggests that
the rule retain the use of the APTA Manual and its reflection of the ongoing
cooperative working relationship between the public transit industry and the
FTA in the critical area of safety and security. As the FTA notes in its preamble
to the rule, "[the] National Transportation Safety Board also made recommendations
to APTA to update the APTA Manual…. and to FTA to adopt the updated Manual."
(Emphasis supplied.)
Further, retention of the APTA Manual in Part 659 is consistent with the
Department of Transportation's recognition of APTA as a Standards Development
Organization, and permits the transit industry and the federal government
to continue their collaborative relationship on important safety and security
issues.
It would also be consistent with APTA's close working relationship with
the Department of Transportation's Federal Railroad Administration. APTA developed
Passenger Rail Equipment Safety Standards, which FRA participated in the development
of, and the commuter railroad version of the system safety program manual
was developed jointly with the FRA and the U.S. Department of Transportation
in an effort to work together to improve overall safety on commuter railroads.
In short, we strongly urge the FTA to reconsider its decision, and to continue
to incorporate the APTA Manual as a part of its state safety oversight rule.
Appropriate Balance
APTA is also concerned that the balance in the proposed rule between the
concerns of the rail transit agencies and the state oversight agencies has
been tipped in favor of the state oversight agencies. Several of the proposed
changes indicate that FTA has focused more on the needs of the state oversight
agencies without considering local needs and differences among the rail transit
agencies. State oversight agency participation took place through a series
of meetings between FTA and the state oversight agencies; however, as noted
above, rail transit agencies have not had this same ongoing collaborative
opportunity to make their views known.
Specific comments on the NPRM are provided below.
Specific Comments
-
Under Section 659.27(a)(3), the $25,000 threshold for reporting property
damage of is very low and will require needless notifications-APTA members
prefer the current $100,000 threshold amount.
-
Under Section 659.27(a), the two-hour notification requirement is unrealistic
and a burden especially during a catastrophic event. The time frame should
be at least four hours to permit adequate time to respond, attend to the
incident and evaluate whether notification is appropriate.
-
The commentary under Section III, Audit Program, on audit finding (1)
is incorrect, making it appear as though there was a need for a process
based hazard management system that was not in the Manual. In fact, the
hazard management system was part of the original APTA program that the
FTA chose to modify in its original 1992 State Safety Oversight Rule to
require an "Unacceptable Hazardous Condition" hazard management
system. This system did not work, and this revision actually restores the
original APTA Hazard Management system.
-
The decision by the FTA to drop the reference to the APTA Manual not
only goes against the NTSB recommendation, but it also has significant other
impacts that in our view do not enhance safety overall and system safety
specifically. The reason that APTA adopted a Systems Safety approach was
to move to a performance based self-regulatory process that provided a means
for agencies to develop and make continuous improvement "optimizing
safety performance within the constraints of time, cost and operational
effectiveness". It recognizes that a "one size fits all"
approach does not work. Should this NPRM proceed as written, this basis
will be abandoned.
-
If the NPRM proceeds as written, the state safety oversight program will
be basically a safety program that is specification oriented. As the FTA
notes in the NPRM, to drop the APTA guidelines FTA needs to create specifications
for the states to "assist in State compliance with rule requirements…the
proposed rule provides minimum requirements." Such a program in which
agencies need only satisfy minimum requirements will end the need to have
a continuous improvement process and there will be no need for a systems
approach to safety; rather, the satisfaction of state requirements will
be the goal. The problem will become one in which each of the affected twenty-two
states and the District of Columbia will define what satisfaction of each
of the twenty-one elements under section 659.15 will mean to them without
a common national standard. Since nearly all the states lack industry expertise,
a national standard will remain elusive.
-
Further, the approach that FTA is taking in adopting the APTA audit criteria
as elements in the regulation will be short lived. FTA will soon discover
that it cannot cover all the variables that will be encountered and will
need to further refine the elements into sub-elements, and those sub-elements
into characteristics and those characteristics into attributes, etc. This
is a natural part of the audit process. As mentioned above, changes are
much more difficult to implement through the regulatory process.
The FTA also proposes to separate system safety plans from system security
plans as separate documents and would require the states to approve any
changes. There is no mention of coordination of effort with DHS/TSA on this
requirement and this will cause confusion and concern among transit agencies.
It is unclear whose regulations prevail-those of DHS, FTA, or the States.
Conclusion
We appreciate the opportunity to comment on this NPRM, and stand ready to
help FTA in the implementation of its state safety oversight regulation. Partnership,
collaboration, and communication have served us well in areas such as the
joint Safety Certification Manual and the Memorandum of Understanding on Bus
System Safety. APTA supports the same type of partnership, collaboration,
and communication in the state safety oversight area, where APTA, FTA and
the state oversight agencies all share a common goal. To do so would better
satisfy the NTSB recommendations and the industry than the methods proposed
in the NPRM. For further information, please contact Kristin O'Grady at (202)
496-4808, or e-mail at kogrady@apta.com
or Daniel Duff at (202) 496-4860, or e-mail at dduff@apta.com.
Sincerely yours,
William W. Millar
President
WWM/cbo
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