Internal Fta Document Draft Not for Circulation

INTERNAL FTA DOCUMENT DRAFT NOT FOR CIRCULATION

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No: FTA–2006–25471]

Safety and Security Management for Major Capital Projects: Notice of Final Circular

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of Availability of Final Circular.

SUMMARY: The Federal Transit Administration (FTA) has placed in the docket and on its website, final guidance in the form of a circular to address safety and security management incapital projects covered under 49 CFR part 633, “Project Management Oversight.” FTA requires a Project Management Plan (PMP) for major capital projects as defined in 49 CFR 633. In the final circular, FTA requires that recipients with projects covered under 49 CFR 633 develop a Safety and Security Management Plan (SSMP), as a separate chapter or plan within the PMP. In this notice, FTA provides a summary of the final circular and addresses comments received in response to the October 11, 2006, Federal Register Notice (71 FR 43280).

As defined in 49 CFR 633.5, major capital projects must “(1) involve the construction of a new fixed guideway or extension of an existing fixed guideway or (2) involve the rehabilitation or modernization of an existing fixed guideway with a total project cost in excess of $100 million.” The Administrator may also designate a major capital projectin those circumstances where he or she determines that FTA’s project management oversight (PMO) program “will benefit specifically the agency or the recipient.” Typically, this means “a project that: (i) generally is expected to have a total project cost in excess of $100 million or more to construct; (ii) is not exclusively for the routine acquisition, maintenance, or rehabilitation of vehicles or other rolling stock; (iii) involves new technology; (iv) is of a unique nature for the recipient; or (v) involves a recipient whose past experience indicates to the agency the appropriateness of the extension of this program.” Major capital projects do not include projects receiving capital investment grants under 49 U.S.C. 5309(e).

DATES: The effective date of this circular is July 1, 2007.

AVAILABILITY OF THE FINAL CIRCULAR: You may download the circular from the Department’s Docket Management System ( by entering docket number 25471 in the search field. You may also download an electronic copy of the circular from FTA’s website, at Paper copies of the circular may be obtained by calling FTA’s Administrative Services Help Desk, at 202–366–4865.

FOR FURTHER INFORMATION CONTACT: For issues regarding safety and security in FTA’s project development phases, please contact Carlos M. Garay, Office of Engineering, Federal Transit Administration, 1200 New Jersey Avenue, SE, Washington, DC 20590, phone: 202–366–6471, or e-mail, . For issues regarding specific safety and security management activities, please contact Levern McElveen, Office of Safety and Security, Federal Transit Administration, 1200 New Jersey Avenue, SE, Washington, DC 20590, phone: 202–366–1651, or e-mail,. For legal issues, please contact Shauna J. Coleman, Office of Chief Counsel, Federal Transit Administration, 1200 New Jersey Avenue, SE, Washington, DC 20590, phone: 202–366–4063, fax: 202–366–3809, or e-mail, .

SUPPLEMENTARY INFORMATION:

Table of Contents

I.Background

II.Why FTA Developed the Proposed Circular.

III.How Does the Final Circular Differ from the Proposed Circular?

IV.How Did FTA Involve the Public in the Circular Revision?

A.General Comments and Questions

1.Applicability of Circular to Major Capital Projects

2.Relationship of Circular to Other SAFETEA–LU Provisions

3.Coordination with Existing Safety and Security Requirements

4.FRA Approval of the SSMP

5.Confusion Regarding How the SSMP Can Be Part of the PMP

6.SSMP Requirement for Mature Transit Agencies

7.Applicability of SSMP Sections to all Projects

8.Impact of Addressing Safety and Security Earlier

9.The Circular’s Financial and Administrative Burden

B.Section-by-Section Discussion

1.Chapter I—Introduction and Background

2.Chapter II—Authority, Activities, FTA Evaluation Criteria, and

Protection of Sensitive Security Information

3.Chapter III—Process for Preparing the SSMP

4.Chapter IV—Required SSMP Contents

I. Background

On October 11, 2006, FTA published its notice of proposed circular,“Safety and Security Management for Major Capital Projects” in the Federal Register. This notice contained a link to the proposed circular FTA developed to implement 49 U.S.C. 5327(a)(13), as amended by Section3026 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU), [Pub. L. 109–59, August 10, 2005]. Thiscircularproposed to extend existing FTA requirements for SSMPs, in Chapter II, Section 6, Safety and Security Management Plan, of FTA’s Full Funding Grant Agreement (FFGA) Guidance Circular 5200.1A to all capital projects covered under 49 CFR part 633.

In the notice, FTA asked the public to comment on specific safety and security management requirements that FTA included in the proposed circular. FTA also asked the public to provide comments regarding the potential impacts of the proposed circular on recipients with projects covered by49 CFR part 633. FTA provided a 60-day comment period, which closed December 11, 2006.

FTA received 13 comments on the notice and proposed circular from six transit agencies, four industry associations, two individuals, and oneState department of transportation (State DOT). FTA reviewed and considered all comments submitted. Based upon comments, FTA revised the proposed circular. In addition, FTA also edited the proposed circular for clarity and accuracy.

FTA hereby announces issuance of the final circular, FTA Circular XXXX.XX, “Safety and Security Management for Major Capital Projects.” This notice does not contain the final circular, but it provides a summary of the provisions found within the circular. This notice also explains how FTA responded to comments.

You may find an electronic version of the final circular on the docket, at entering docket number 25471 in the search field, or on FTA’s website, at You may obtain paper copies of the final circular by contacting FTA’s Administrative Services Help Desk, at 202–366–4865.

II.Why FTA Developed the Proposed Circular.

FTA developed the proposed circular to address 49 U.S.C. 5327(a)(13), as amended by Section 3026 of SAFETEA–LU. This section requiresrecipients with major capital projects covered by 49 CFR part 633to include “safety and security management” as an element of their PMP. FTA also developed the proposed circular to provide additional guidance for recipients in addressing safety and security issues during the project development process.

When developing the circular, FTA reviewed its past experience regarding how recipients addressed safety and security issues in their PMPs. FTAdetermined that recipients typically described safety and security management strategies and controls as sub-elements of other required PMPSections. FTA also determined that recipients performed different types of activities to address safety and security. Some recipients elected to perform safety and security certification or pre-revenue operational readiness assessments, while other recipients did not. FTA also determined that recipients did not implement consistent approaches to safety and security management.

In the notice of the proposed circular, FTA describesin detail the information FTA reviewed and considered in developing the proposed circular. Specifically, FTA explains how the following three factors guided its development of the proposed circular:

(1)FTA reviewed the results of its previous experience implementing the requirements specified in Chapter II, Section 6, Safety and Security Management Plan of FTA’s FFGA Guidance Circular 5200.1A.

(2)FTA also reviewed new safety and security guidance issued since 2002 by FTA, the Transit Cooperative Research Program (TCRP), the American Public Transportation Association (APTA) Rail Transit Standards Program, the Federal Highway Administration (FHWA), theFederal Railroad Administration(FRA), and Operation Lifesaver.

(3)Finally, FTA reviewed new Federal security requirements and programs developed by the Department of Homeland Security (DHS), the Transportation Security Administration (TSA), and the DHS Office of Grants and Training (OGT).

III.How Does the Final Circular Differ from the Proposed Circular?

While FTA retained much of the content of the proposed circular, FTA is incorporating the following changes into the final circularin response to comments received on the proposed circular:

• FTA is revising definitions in response to comments requesting consistency with 49 CFR part 659, “Rail Fixed Guideway Systems; State Safety Oversight.” Specifically, FTA is revising the definitions for “Contractor,”“Hazard,”“Passenger,”“Safety,” “Security,”“System Safety Program Plan,” and “System Security Plan”to make them consistent with the definitions in 49CFR 659.5. FTAalso revised the final circular to use, more consistently, terminology that is in use in existing FTA or U.S. Department of Transportation (DOT) directives.
• To enhance consistency with 49 CFR part 633, FTA is using the term “recipient,” as opposed to “grantee,” throughout the final circular.
• In the interest of StateDOTsthat may be serving as pass-through agencies for Federal funds, FTA is clarifying that the “recipient” responsible for preparing the PMP is also the “recipient” responsible for developing the SSMP.
• To address commenterquestionsregarding the applicability of the proposed circular to different types of projects covered under 49 CFR part 633 during different project phases, FTA explains that the SSMP requirements specified in the final circular will not be applied to major capital projects with approved PMPs in place—as of the effective date of the circular. FTA will only apply these requirements to major capital projects initiated after the effective date of the circular and to major capital projects involving the construction of a new fixed guideway or extension of an existing fixed guideway—in preliminary engineering or earlier phases as of the effective date of the circular.
• Recipients with major capital projects involving the rehabilitation or modernization of an existing fixed guideway with a total project cost in excess of $100 million with approved PMPs in place—as of the effective date of the circular—are exempt from the requirement to develop an SSMP. However, for these projects, FTA reiterates its commitment to work with the appropriate State oversight agencies and FRA, to ensure that these recipients are addressing existing provisions for safety and security certification specified in their System Safety Program Plans (SSPPs) and System Security Plans.
• Recipients with major capital projects involving the rehabilitation or modernization of an existing fixed guideway with a total project cost in excess of $100 million—initiated after the effective date of the circular—are required to developSSMPs, meeting the terms of this final circular, as part of their initial PMPs submitted to FTA.
• Recipients with major capital projects involving the construction of a new fixed guideway or extension of an existing fixed guideway—in final design or later phases as of the effective date of the circular— are exempt from the requirement to develop an SSMP meeting the terms of this circular. However, FTA clarifies that these recipients must continue to comply with the original safety and security management guidance, provided in Chapter II, Section 6, Safety and Security Management Plan, of FTA’s FFGA Circular 5200.1A.
• Recipients with major capital projects involving the construction of a new fixed guideway or extension of an existing fixed guideway—in preliminary engineering or earlier phases as of the effective date of the circular—are required to develop SSMPs meeting the terms of this circular, as part of the PMPs they submit to FTA.
• Recipients with major capital projects designated by the Administrator with approved PMPs—as of the effective date of the circular—are not required to develop SSMPs meeting the terms of this circular. However, FTA clarifies that these recipients must continue to comply with the original safety and security management guidance, provided in Chapter II, Section 6, Safety and Security Management Plan, of FTA’s FFGA Circular 5200.1A.
• Recipients with major capital projects designated by the Administrator—after the effective date of the circular—are required to developSSMPs meeting the terms of this circular, as part of the PMPs they submit to FTA.
• FTA clarifies that major capital projects do not include projects receiving capital investment grants under 49 U.S.C. 5309(e). Therefore, recipients with these projects are not required to develop SSMPs.
• FTA also is addressingcomments regarding the applicability of specific SSMP Sections to specific projects. FTA is amending Chapter III of the proposed circular to clarify that, if recipients have questions regarding the applicability of specific SSMP Sections to their projects, then these recipients must meet with their FTA Regional Offices and the Project Management Oversight Consultants (PMOCs) assigned to their projects. During this meeting, recipients must explain why they believe specific SSMP Sections, as identified in Chapter IV of the final circular, are not applicable to their projects. If FTA agrees, then FTA will not require these recipients to address these sections in their SSMPs.
• FTA is revising the final circular to include an Appendix Checklist that provides more guidance regarding the level of detail recipients must include in each SSMP Section for different types of projects during different project development phases.

IV.How Did FTA Involve the Public in the Circular Revision?

FTA is responding to the 13 comments received on the proposed circular in the following order: (a) General Comments and Questions and (b) Section-by-Section Discussion.

A.General Comments and Questions

1.Applicability of Circular to Major Capital Projects

Eight commenters asked FTA to clarify whether the proposed circularapplied to their projects. Four commenters with major capital projects involving the rehabilitation or modernization of an existing fixed guideway with a total project cost in excess of $100 millionrequested that FTA exempt their projects from the requirement to develop an SSMP. These commenters pointed out that their projects had been planned and budgeted before FTA issued the proposed circular. These commenters felt that it was unfair for FTA to impose new requirements on their existing projects. Furthermore, these commenters explained that they believed that their existing programs adequately addressed the circular’s requirements.

Four commenters with major capital projects involving the construction of a new fixed guideway or extension of an existing fixed guideway asked FTA to determinethe applicability of the circular to their projects. Two of these commenters had already developed SSMPs in compliance with Chapter II, Section 6 of FTA Circular 5200.1A. These commenters requested that FTA exempt their projects from the new requirements in the proposed circular.

FTA Response: Based on these comments, FTA is amending the applicability of the finalcircular. FTA agrees that recipients with major capital projects involving the rehabilitation or modernization of an existing fixed guideway with a total project cost in excess of $100 million—initiated before the effective date of the circular—did not have the opportunity to budget resources to address the SSMP requirement into their projects. Therefore, FTA will be exemptingthese projects—initiated before the effective date of the circular—from the requirement to develop an SSMP.

However, FTA believes that recipients with major capital projects involving the rehabilitation or modernization of an existing fixed guideway with a total project cost in excess of $100 million—initiated after the effective date of the circular—will have ample opportunity to budget resources to address the safety and security requirements in the final circular. Therefore, FTA will require recipients with these projects to develop SSMPs.

FTA also changed the proposed circular’s applicability for recipients with major capital projects involving the construction of a new fixed guideway or extension of an existing fixed guideway. FTA determined that the final circularwill be applicable to these projects in preliminary engineeringor earlier project development phases as of the effective date of the final circular. During the initial development or next update to the PMP, these recipients must includeSSMPsmeeting the terms of this circular as part of their PMPs. For all other recipients with major capital projects involving the construction of a new fixed guideway or extension of an existing fixed guideway (i.e., those in final design or later project phases), FTA decided that the terms of the original guidance in Chapter II, Section 6 of Circular 5200.1A will remain in effect.

For recipients with major capital projects designated by the Administrator with approved PMPs—as of the effective date of the circular—FTA will not require the development of SSMPs meeting the terms of this circular. However, FTA clarifies that these recipients must continue to comply with the original safety and security management guidance, provided in Chapter II, Section 6, Safety and Security Management Plan, of FTA’s FFGA Circular 5200.1A. Major capital projects designated by the Administrator—initiated after the effective date of the circular—will be required to develop SSMPs meeting the terms of the circular, as part of the PMPs they submit to FTA.

2.Relationship of Circular to Other SAFETEA–LU Provisions

In itsnotice of proposed circular, FTA reserved“the right to make page changes to thecircular regarding updates to other provisions, without subjecting the entire circular to public comment.” One commenter felt that FTA should clarify in the final notice or circular that FTA will“offer any proposed changes for public comment when the changes affect any binding obligations on recipients.”

FTA Response: FTA agrees with this commenter. FTA appreciates that other activities to fully implement SAFETEA–LU provisions are still on-going and could potentially affect implementation of thiscircular. In the event that FTA initiates a rulemaking that impacts this circular or its implementation, FTA will provide the public with the opportunity to comment on such changes through the appropriate rulemaking process. If necessary, FTA will make changes to and/oror amend this circular based on the outcome of the rulemaking process.

By reserving the right to make changes to referenced guidance and regulations without public comment, FTA is not attempting to deny the public the opportunity to comment on elements of the circular that may be affected by other FTA initiatives to implement SAFETEA–LU. FTA is merely asserting theneed to keep the circular up-to-date with the current versions of referenced rules and guidance.