STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
ORDER ADOPTING
PERMANENT RULE
CLEARINGHOUSE RULE 17-070
The State of Wisconsin Department of Transportation Proposes an Order to Create Permanent Rule Wis. Admin. Code. ch. trans 10 Relating to Transit safety oversight program for rail fixed guideway transportation systems.
INTRODUCTION
The Statement of Scope for this rulemaking, SS 090-16, was approved by the Governor on October 4, 2016, published in Register No. 730A2 on October 10, 2016, and approved by the Secretary of the State of Wisconsin Department of Transportation (“Department”) Mark Gottlieb, P.E., as required by s. 227.135(2), Stats., on November 1, 2016. The analysis below was prepared by the Department. The Department proposes an order to create chapter Trans 10, Wis. Admin. Code, relating to a transit safety oversight program for rail fixed guideway transportation systems. ANALYSIS
Statutes Interpreted: s. 85.066, Stats. Explanation of Agency Authority: Section 85.16(1), Stats., authorizes the Secretary of the Department to make rules deemed necessary to the discharge of the powers, duties and functions vested in the Department. Section 85.066(2), Stats. requires the Department to develop and administer a transit safety oversight program to oversee, enforce, investigate, and audit all safety aspects of rail fixed guideway transportation systems. Related Statute or Rule: Not Applicable (“N/A”)
Plain Language Analysis: This rulemaking is necessary to comply with federal law requiring states to develop, certify with the Federal Transit Administration (FTA), and administer a state safety oversight program in accordance with new federal rule 49 CFR Part 674. Failure by the state to establish an FTA-certified, Part 674-compliant state safety oversight (SSO) program by the statutory deadline of April 15, 2019, will result in FTA withholding all Chapter 53 funds from both the state and all entities obtaining those funds through the state. Background: Effective on October 1, 2012, the federal Moving Ahead for Progress in the 21st Century Act (MAP-21) addressed state of good repair, performance, program efficiency, and safety of public transportation. MAP-21 gave FTA new authority to strengthen safety of public transportation systems by establishing and enforcing a new comprehensive framework to oversee them. Section 5329 of MAP-21 contains the framework of the new federal safety program, including updates to the state safety oversight program.
On August 22, 2012, FTA’s Office of Budget and Policy put out a summary paper titled “Moving Ahead for Progress in the 21st Century Act (MAP-21): A Summary of Public Transportation Provisions”
The following is an excerpt from the summary paper’s overview of the Section 5329 safety program, specifically concerning new requirements for state safety oversight programs:
State Safety Oversight
MAP-21 includes new requirements for the State Safety Oversight (SSO) program, through which States with heavy rail, light rail, and streetcar systems must establish safety oversight for these transit systems. MAP-21 requires State Safety Oversight Agencies (SSOAs) to be legally and financially independent from the rail systems they oversee, and have the authority, staff training, and expertise to enforce Federal and State safety laws. FTA must certify whether each SSO is adequate and meets the requirements. FTA will oversee implementation of the SSO programs and audit each SSO agency at least triennially.
Through MAP-21, Congress directed FTA to engage in rulemaking to give effect to the statutory provisions, including for the enhanced state safety oversight program. Accordingly, FTA promulgated 49 CFR Part 674 to replace the former state safety oversight program rule, 49 CFR Part 659. By extension, the state rulemaking for Trans 10 is in direct response to both the statutory requirements of MAP-21 and the regulatory requirements of Part 674. To address the statutory and regulatory requirements in MAP-21 and 49 CFR Part 674, Trans 10 is divided into four parts, as follows: Part 1 details the purpose and scope of the transit safety oversight program, including the statutory authority for the program, and the program’s applicability to the Department and owners or operators of rail fixed guideway transportation systems.
Part 2 specifies various definitions used within the transit safety oversight program.
Part 3 designates the Department as the authorized state safety oversight agency for the State of Wisconsin. The section also details the requirements and authority of the state safety oversight agency, including the program’s high-level policy to oversee, enforce, investigate, and audit all safety aspects of all rail fixed guideway transportation systems in the state, as follows:
• Requires financial and legal separation from any public transportation agency under the Department’s oversight.
• Prohibits the Department from providing public transportation services in an area with a rail fixed guideway transportation system under the Department’s oversight.
• Requires the Department to have the ability to determine appropriate staffing levels for the transit safety oversight program.
• Prohibits the Department from employing certain individuals who administer or provide services to a rail fixed guideway transportation system under the Department’s oversight.
• Requires the Department to have the ability to determine employee qualifications compliant with a federal public transportation safety certification training program.
• Requires the Department to review, approve, oversee, and enforce the safety plan for every rail transit agency under the Department’s oversight.
• Requires the Department to audit the safety of plan of every rail transit agency under the Department’s oversight, at least once every three years.
• Authorizes the Department to conduct inspections, audits, and investigations for events that occur on any rail fixed guideway transportation system under the Department’s oversight.
• Authorizes the Department to enforce minimum standards for safety for rail fixed guideway transportation system under the Department’s oversight.
Part 4 requires the Department to have a state safety oversight program standard, as required by federal law, that applies to all rail fixed guideway transportation systems under the Department’s oversight.
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: Trans 10 is consistent with both the authorizing legislation for state safety oversight programs found in 49 USC 5329(e), and the FTA’s final rule for state safety oversight programs found in 49 CFR Part 674. Under federal law, 49 USC 5329(e), the national public transportation safety program requires that: …eligible State[s] shall have in effect a State safety oversight program approved by the Secretary under which the State…assumes responsibility for overseeing rail fixed guideway public transportation safety;…adopts and enforces Federal and relevant State laws on rail fixed guideway public transportation safety;…establishes a State safety oversight agency;…determines, in consultation with the Secretary, an appropriate staffing level for the State safety oversight agency that is commensurate with the number, size, and complexity of the rail fixed guideway public transportation systems in the eligible State;…requires that employees and other designated personnel of the eligible State safety oversight agency who are responsible for rail fixed guideway public transportation safety oversight are qualified to perform such functions through appropriate training, including successful completion of the public transportation safety certification training program established under subsection (c); and…prohibits any public transportation agency from providing funds to the State safety oversight agency….
Under federal regulation, 49 CFR Part 674, a state safety oversight program is required to: …[e]xplicitly acknowledge the State's responsibility for overseeing the safety of the rail fixed guideway public transportation systems within the State;…establish minimum standards for the safety of all rail fixed guideway public transportation systems within its oversight…review and approve the Public Transportation Agency Safety Plan for every rail fixed guideway public transportation system within its oversight…oversee an RTA's execution of its Public Transportation Agency Safety Plan…enforce the execution of a Public Transportation Agency Safety Plan, through an order of a corrective action plan or any other means, as necessary or appropriate…[and]…ensure that a Public Transportation Agency Safety Plan meets the requirements at 49 USC 5329(d)…[have] primary responsibility for the investigation of any allegation of noncompliance with a Public Transportation Agency Safety Plan…[and have] primary responsibility for the investigation of an accident on a rail fixed guideway public transportation system.
