The Texas Department of Transportation (department) proposes the repeal of §31.3, §31.61, §31.62, §31.64, and §31.65 and simultaneously proposes new §31.3, §31.61, and §31.62, concerning the rail fixed guideway system state safety oversight program.

EXPLANATION OF PROPOSED REPEALS AND NEW SECTIONS

The Federal Transit Administration (FTA) adopted new regulations governing Rail Fixed Guideway Systems, State Safety Oversight. The new regulations are published in Title 49 CFR Part 659 and are entitled: Rail Fixed Guideway Systems; State Safety Oversight. New provisions specify the department responsibility of adopting requirements that address the elements identified in 49 CFR Part 659. In accordance with the federal regulation, new proposed §31.3, §31.61 and §31.62 require the rail fixed guideway systems to adhere to the provisions outlined in the federal regulations.

In 1991, Congress required that the FTA establish a program providing for the state-conducted oversight of the safety and security of rail systems not regulated by the Federal Railroad Administration (FRA), by enacting a statute in Title 49 USC §5330. FTA published final regulations to implement the federal statute in 1995 and the final rule went into effect January 26, 1996. In 1997, the Texas Legislature enacted a state statute, Transportation Code, §455.005, requiring state compliance with Title 49 USC §5330. In enacting the state statute in May 1997, the Texas Legislature adopted the compliance requirements set out in the FTA regulations in effect at the time. The department adopted rules to further implement the statute in September 1997. The state statute states that its purpose is to ensure state compliance with the federal statute published in Title 49 USC §5330.

The FTA amended its regulations that implement the federal statute and published final regulations on April 29, 2005. The final regulations became effective on May 31, 2005 and the date by which states are required to comply is May 1, 2006.

FTA's new final regulations contain compliance requirements that are more stringent and more specific than the requirements stated in its former regulations. The regulations are more specific in that the FTA no longer requires compliance with standards published in a transportation association manual, rather the new rule enumerates the specific compliance standards.

The department proposes the repeal of §31.3 and simultaneously proposes new §31.3 in a revised form. New §31.3, Definitions, proposes new terms that match terms used in the new federal regulations.

The new federal regulations spell out the requirements formerly stated in the American Public Transportation Association (APTA) Manual and guidelines, instead of incorporating the requirements by reference. The FTA determined that it is in the interest of users to publish all of the provisions of the APTA Manual in the state safety oversight regulation, so reference to APTA guidelines must be deleted. The new federal regulations were intended to improve the performance of the State Safety Oversight Program and to ensure the following outcomes: (1) enhance program efficiency; (2) increase responsiveness to recommendations from the National Transportation Safety Board (NTSB) and emerging safety and security issues; (3) improve consistency in the collection and analysis of accident causal factors through increased coordination with other federal reporting and investigation programs; and (4) improve performance of the hazard management process. The regulation also clarifies FTA's oversight management objectives, and streamlines current reporting requirements. The regulations also address heightened concerns for rail transit security and emergency preparedness.

Terms no longer used in the federal regulations include references to "APTA," "hazardous condition," and "unacceptable hazardous condition," as those terms were used in the manual. New provisions are proposed in order for the state to comply with the federal statute and the regulations that implement the statute. New terms and definitions are included to reflect the new federal regulations: "corrective action plan," "FRA," "hazard," "individual," "investigation," "new starts project," "passenger operations," "program standard," "rail accident," "rail transit accident," "rail transit contractor," "rail transit controlled property," "rail transit fixed guideway system," "rail transit passenger," "rail transit vehicle," "security," "system safety program plan," and "system security plan." The definitions have been renumbered to reflect the deletions and additions detailed above.

The department proposes the repeal of §31.61 and simultaneously proposes new §31.61 in a revised form. New §31.61, Rail Transit Agency Responsibilities, proposes new provisions to comply with the federal regulations published in 49 CFR Part 659.

New §31.61(a) sets out the requirements for each rail transit agency to develop and implement a system safety program that complies with the federal regulations. Rail transit agencies are required to develop and maintain a separate system safety program plan that complies with the requirements specified in the federal regulations.

New §31.61(b) sets out the requirements for each rail transit agency to develop and implement a system security plan that complies with the new federal regulations.

New §31.61(c) requires each rail transit agency to perform an annual review of its system safety program and its system security plan that complies with the new federal regulations.

New §31.61(d) requires the rail transit authority to maintain ongoing internal safety and security reviews that complies with the new federal regulations.

New §31.61(e) requires the rail transit agency to develop and document a hazard management process that complies with the new federal regulations. The rail transit agency hazard management process must be part of its system safety program plan, to be reviewed and approved by the department. The rail transit agency must develop, in coordination with the department, thresholds for the notification and reporting of hazards to the department. Measures to eliminate or control hazards and the associated corrective actions are to be managed through the hazard management process, including rail transit agency procedures for providing the department with reports to track mitigation. The rail transit agency's hazard management process must include, at a minimum, a definition of the rail transit agency’s approach to the hazard management and resolution process, a list of the sources and mechanisms used to support the ongoing identification of hazards, the process by which identified hazards will be evaluated and prioritized for elimination or control, the mechanism used to track identified hazards to resolution, and the process for ongoing reporting of hazard resolution activities to the department.

New §31.61(f) requires the rail transit agency to notify the department of accidents, including a fatality, injuries requiring immediate medical attention and property damage, in accordance with federal regulations. FTA has modified the thresholds for the notification and investigation of accidents. Rail transit agencies are required to report the occurrence of accidents within two (2) hours. In those instances where the rail transit agency shares track with the general railroad system and is subject to FRA notification requirements, the rail transit agency must notify the department within two (2) hours of an incident for which FRA is notified. The department must investigate, or cause to be investigated, all accidents meeting the notification and investigation thresholds.

New §31.61(g) requires the transit agency to develop and implement corrective action plans that comply with the new federal regulations. The department must review and approve all procedures, except those used by the NTSB that will be used to conduct an investigation on its behalf. The rail transit agency is required to develop corrective action plans to address findings from accidents and the department's three-year safety and security review. In the case of accident investigations, the department is responsible for ensuring that a corrective action plan is developed, implemented, and tracked, regardless of the entity that conducts the investigation on the state's behalf. The provisions identify a dispute resolution process for matters related to corrective action plan requirements.

The provisions in §31.62, State Responsibilities, are proposed for repeal because they set out the department's responsibilities for reporting and compliance with the new federal regulations, in 49 CFR Part 659. The provisions state internal requirements for the department and are therefore not required to be adopted as a rule.

The department proposes the repeal of §31.64, Contractors for Rail Fixed Guideway Transit Agencies, because the provisions covered under this section are now listed in the elements contained in 49 CFR Part 659 and the requirements are reflected under the new proposed §31.61.

The department proposes the repeal of §31.65, Deadlines, and simultaneously proposes new §31.62, Deadlines, reflecting the requirements outlined in the new federal regulations, 49 CFR Part 659.

FISCAL NOTE

James Bass, Chief Financial Officer, has determined that for each of the first five years the repeals and new sections as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeals and new sections. There are no anticipated economic costs for persons required to comply with the sections as proposed.

Eric Gleason, Director, Public Transportation Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the repeals and new sections.

PUBLIC BENEFIT

Mr. Gleason has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the repeals and new sections will be compliance with federal regulations and with state law, and ensuring the safety and security of rail fixed guideway systems. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed repeals and new sections may be submitted to Eric Gleason, Director, Public Transportation Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on April 10, 2006.

Subchapter A. GENERAL