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. Wisconsin’s state safety oversight program is tailored to meet the requirements under 49 USC 5329(e) and the rules promulgated by FTA under 49 CFR Part 674. Consistent with federal law, s. 85.066(2), Stats. authorizes the Department to develop and administer such a program. Comparison with Rules in Adjacent States:
• Illinois: Illinois has qualifying fixed guideway public transportation systems and has a state safety oversight program; as a result, Illinois is also required to comply with the new federal requirements under 49 CFR Part 674. A bill, SB 2527 (originally filed 2/16/2016) seeking to bring the Illinois state safety oversight program into federal compliance passed the Illinois Senate as of 4/22/2016 and is pending sine die in the Illinois House as of 1/10/2017. • Iowa: Iowa does not have any qualifying rail fixed guideway public transportation systems and so does not have a state safety oversight program; as a result, Iowa is not required to comply with the new federal requirements under 49 CFR Part 674. • Michigan: Michigan has qualifying rail fixed guideway public transportation systems and has a state safety oversight program; as a result, Michigan is also required to comply with the new federal requirements under 49 CFR Part 674. Michigan is currently drafting legislation seeking to bring the Michigan state safety oversight program into federal compliance, though it has no current plans for an administrative rule. • Minnesota: Minnesota has qualifying rail fixed guideway public transportation systems and has a state safety oversight program; as a result, Minnesota is also required to comply with the new federal requirements under 49 CFR Part 674. To achieve federal compliance, Minnesota has adopted the federal law and approach concerning its state safety oversight program; currently, Minnesota has one related state law: 299A.017 State Safety Oversight, and has no current plan for an administrative rule. Summary of the Factual Data and Analytical Methodologies: N/A
Analysis Regarding Rule’s Effect on Small Businesses: N/A
Effect on small business: N/A
The agency contact person listed below is also the small business regulatory coordinator for this proposed rule. This proposed rule, fiscal estimate, and other related documents may be viewed at https://health.wisconsin.gov/admrules/public/Home. Agency Contact Person:
Eric Stoegbauer
State of Wisconsin Department of Transportation
Division of Transportation Investment Management
4802 Sheboygan Avenue Room 951
Madison, Wisconsin 53705
Phone Number: 608-286-0041
[See PDF for proper formatting]
TEXT OF RULE
SECTION 1: Ch. Trans 10 is created to read: Trans 10.01 Purpose and scope.
(1)
STATUTORY AUTHORITY. This chapter interprets and implements s. 85.066(2), Stats., and establishes the administrative policies and procedures for the transit safety oversight program for rail fixed guideway transportation systems in the state, in accordance with 49 U.S.C. § 5329 and 49 CFR Part 674. (2)
APPLICABILITY. This chapter applies to the department and any person that owns, operates, or provides services on a rail fixed guideway transportation system in the state.Trans 10.02 Definitions.
In this chapter:
(1)
“Agency safety plan” means the document or documents describing a rail transit agency’s safety policies, objectives, responsibilities, and procedures.(2)
“Department” means the Wisconsin department of transportation.(3)
“FTA” means the federal transit administration, an agency within the United States department of transportation.(4)
“National public transportation safety plan” means the federal plan to improve the safety of all public transportation systems that receive federal financial assistance under 49 U.S.C. Chapter 53.(5)
“Person" means any natural person, partnership, corporation, business entity, or governmental body.(6)
“Public transportation safety certification training program” means either the federal interim provisions made in accordance with 49 U.S.C. § 5329(c)(2), or the federal program authorized by 49 U.S.C. § 5329(c)(1).(7)
“Rail fixed guideway transportation system” or “rail transit system” has the same meaning given in s. 85.066(1), Stats. (8)
“Rail transit agency” means any person who provides services on a rail fixed guideway transportation system.
Trans 10.03 Transit safety oversight program.
(1)
DESIGNATION OF OVERSIGHT AGENCY. The department is the designated state safety oversight agency for the state, and shall develop and administer the transit safety oversight program for rail fixed guideway transportation systems in the state, as authorized by s. 85.066(2), Stats., and as required by 49 U.S.C. § 5329 and 49 CFR Part 674.(2)
REQUIREMENTS OF OVERSIGHT AGENCY. The department shall, per requirements under 49 CFR Part 674, do all of the following:(a)
Unless relieved of such requirement by federal waiver, the department shall do all of the following:1.
Remain financially and legally independent from any rail transit agency under the department’s oversight under this chapter.2.
Prohibit any rail transit agency under the department’s oversight under this chapter from providing funds to the department.3.
Prohibit department provision of direct public transportation services in an area with a rail fixed guideway transportation system under the department’s oversight.(b)
Prohibit departmental employment of any individual who administers, provides services to, or serves as a contractor for, a rail fixed guideway transportation system under the department’s oversight.(c)
Determine whether departmental employees or other personnel responsible for safety oversight of rail fixed guideway transportation systems under the department’s oversight are qualified to perform their functions by ensuring compliance with requirements of the public transportation safety certification training program, as applicable.(3)
AUTHORITY OF OVERSIGHT AGENCY. The department shall oversee, enforce, investigate, and audit all safety aspects of all rail fixed guideway transportation systems in the state, in accordance with the program standard established under this chapter and applicable federal and state law, by doing all of the following:(d)
Reviewing and approving the agency safety plan of each rail transit agency for all rail fixed guideway transportation systems under the department’s oversight.(e)
Overseeing and enforcing rail transit agency compliance in execution of its agency safety plan by ordering corrective action plans or by any other means, as necessary or appropriate. (f)
Auditing a rail transit agency’s compliance with its agency safety plan at least once every three years.
