Date of Adoption: June 6, 2002.

     Purpose: Update existing rules to clarify requirements, add rules to address part-time operations, and recovery of state triennial audit expenses.

     Citation of Existing Rules Affected by this Order: Amending WAC 468-550-030, 468-550-040, 468-550-060, 468-550-070, and 468-550-080.

     Statutory Authority for Adoption: RCW 81.104.115(5).

      Adopted under notice filed as WSR 02-10-020 on April 23, 2002.

     Changes Other than Editing from Proposed to Adopted Version: Reinstated proposed deleted definition of "accident." Removed proposed new definition of "incident." Removed all proposed changes from "accidents" to "incidents."

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 2, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 2, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 5, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
     Effective Date of Rule: Thirty-one days after filing.

June 6, 2002

P. J. Hammond

Chief of Staff

OTS-5619.2

AMENDATORY SECTION(Amending Order 193, filed 8/30/99, effective 9/30/99)

WAC 468-550-030   Definitions.   For the purposes of this chapter, the following definitions of terms shall apply unless the context clearly indicates otherwise:

     (1) Accident, reportable means any event involving the operation of a RFGS along a revenue line segment, if as a result:

     (a) An individual dies; or

     (b) An individual suffers bodily injury and immediately receives medical treatment away from the scene of the accident; or

     (c) A collision, derailment, or fire causes property damage in excess of $50,000.

     (2) APTA Guidelines means the American Public Transit Association's "Manual for the Development of Rail Transit System Safety Program Plans."

     (3) Chief executive officer means, but is not limited to, the mayor, county executive, or chair of the municipality, or corporate president of the public or private entity that owns, operates, or maintains a RFGS.

     (4) Contractor means an entity that performs tasks required by this chapter on behalf of the department or a RFGS.

     (5) Department means the Washington state department of transportation which has been designated as the state safety oversight agency.

     (6) Emergency means a situation which is life threatening to passengers, employees, or others or which causes damage to any rail fixed guideway vehicle or facility or results in a significant theft of services which severely affects the ability of the system to fulfill its mission.

     (7) FTA means the Federal Transit Administration, or its successors, an agency within the U.S. Department of Transportation.

     (8) Hazardous condition means a set of circumstances that if not identified and corrected has or will result in personal injury or property damage. It includes unacceptable hazardous conditions.

     (9) Investigation means a procedure that the department or a RFGS utilizes to determine the cause of a reportable accident, hazardous condition, or security breach.

     (10) Medical attention means emergency care at a state-licensed general hospital, critical access hospital, or health clinic, or by a religious practitioner.

     (11) Plan means the system safety and security program plan which is adopted by the RFGS detailing its safety and security policies, objectives, responsibilities and procedures.

     (((11))) (12) Procedure means an established and documented method to perform a task.

     (((12))) (13) Rail fixed guideway system or "RFGS" means a light, heavy, or rapid rail system, monorail, inclined plane, funicular, trolley, or other fixed rail guideway that is not regulated by the Federal Railroad Administration. "RFGS" does not include elevators, moving sidewalks or stairs, and vehicles suspended from aerial cables, unless they are an integral component of a station served by a rail fixed guideway system, or operations not available to the general public, acquired by an individual or group of individuals for a common purpose to travel together as a group to a specific destination or for a particular itinerary. A RFGS also shall be within a federally recognized urbanized area ((and included in the Federal Transit Administration's (FTA) calculation of fixed guideway route miles or receives funding under FTA's formula program for urbanized areas (49 U.S.C. 5336))).

     (((13))) (14) Revenue line segment means that portion of a fixed guideway system upon, under, or through which a RFGS provides service available to the general public. It includes stations used by the system's passengers to enter or leave the RFGS's conveyance.

     (15) Risk means the probability that a security breach will occur.

     (((14))) (16) Safety means freedom from danger.

     (((15))) (17) Seasonally means the provision of service available to the general public fewer than a total of one hundred eighty days within a twelve-month period. The provision of service any time on a calendar day is a day counted towards the threshold of one hundred eighty days.

     (18) Security means freedom from intentional danger.

     (((16))) (19) Security breach means an unforeseen event or occurrence that endangers life or property and may result in the loss of services or system equipment.

     (((17))) (20) Service available to the general public does not include operations for a specific private function when a RFGS accepts hire, such as group charters, weddings, or other private events that are not available to the general public on a walk-in basis.

     (21) Standard means the system safety and security program standard which is the standard developed and adopted by the department which complies with the APTA Manual for the Development of Rail Transit System Safety Program Plans, the Federal Transit Administration's Transit System Security Program Planning Guide (FTA-MA-90-7001-94-1), The Federal Transit Administration's Implementation Guidelines for State Safety Oversight of Rail Fixed Guideway Systems, and the State Safety Oversight Security Handbook.

     (((18))) (22) System means a composite of people, property, environment, and procedures which are integrated to perform a specific operational function in a specific environment.

     (((19))) (23) Triennial safety and security audit means a formal, comprehensive, on-site examination by the department of a RFGS's safety and security procedures to determine whether it complies with the RFGS's policies and procedures as outlined in the RFGS's plan.

     (((20))) (24) Unacceptable hazardous condition means a hazardous condition of type IA, IB, IC, IIA, IIB, OR IIIA as determined using the "Hazardous Resolution Matrix" in APTA Manual for the Development of Rail Transit System Program Plans.

[Statutory Authority: 1999 c 202 § 7. 99-18-059 (Order 193), § 468-550-030, filed 8/30/99, effective 9/30/99. Statutory Authority: RCW 43.06.120. 98-19-052, § 468-550-030, filed 9/15/98, effective 10/16/98.]

     (a) Reporting and investigating reportable accidents and unacceptable hazardous conditions;

     (b) Submitting corrective action plans and annual safety and security audit reports;

     (c) Facilitating on-site safety and security reviews by the department; and

     (d) Addressing passenger and employee security.

     The plan and any revisions thereto shall, at a minimum, conform to the standard set forth in WAC 468-550-050, be approved by the RFGS's chief executive officer and submitted for departmental review by September 1, 1999, or within three months prior to beginning operations or instituting revisions to the plan. The RFGS shall not transmit the security portions of its system safety and security program plan to the department. The RFGS shall notify the department of the location and availability of the security portions of its system safety and security program plan.

     (2) Each RFGS shall implement and comply with the provisions of its plan and any revisions thereto. Further, should the RFGS change ownership or operating or maintenance providers, the RFGS shall require its successors, assigns, and contractors to continue to comply with the RFGS's established plan and shall notify the department of any change of ownership or operating or maintenance providers within thirty days of the effective date of transfer or contract.

     (3) The security section of the plan is exempt from public disclosure under chapter 42.17 RCW. Each RFGS may develop procedures to implement this subsection. Completed reports of reportable accidents and unacceptable hazardous conditions, corrective action plans, annual safety and security audit reports, published reviews of the department, published RFGS internal safety and security audits, and notifications of reportable accidents and unacceptable hazardous conditions are not subject to this exemption.

     (4) Each RFGS that operates seasonally shall submit a system description and organization structure to the department by September 1, 2002, or within ninety days of commencing operations, whichever is sooner. Each RFGS shall update this submittal within thirty days after any changes to the system description or organizational structure occur.

     (a) The system description shall identify the revenue line segments, revenue equipment, and all locations for embarking or debarking passengers.

     (b) The organizational structure shall identify the decision-making structure for the RFGS, including any firm or organization contracted to undertake its seasonal operations.

     (c) This submittal shall include safety contact information for the RFGS and any firm or organization contracted to undertake its seasonal operations.

[Statutory Authority: 1999 c 202 § 7. 99-18-059 (Order 193), § 468-550-040, filed 8/30/99, effective 9/30/99. Statutory Authority: RCW 43.06.120. 98-19-052, § 468-550-040, filed 9/15/98, effective 10/16/98.]

     (i) Observing work practices and employee performance during system operations;

     (ii) Sampling and inspecting selected system components to verify proper maintenance; and

     (iii) Reviewing RFGS records for all phases of system operations, maintenance, and security.

     The RFGS shall select a qualified person(s) or contractor to perform its internal audits and shall notify the department not later than ten days prior to performing the internal audits. The notification shall include date(s) of audit, what is to be audited, and the qualifications of those selected to perform the audit, such qualifications are subject to departmental concurrence. The department may assess the effectiveness of each RFGS audit program; however, any departmental review or concurrence shall not substitute for the RFGS's own safety and security inspection audit programs, nor relieve the RFGS from its sole liability for the safety and security of its system.

     (b) Each RFGS, as a basis for its audit process, shall prepare, maintain, and make available for departmental review records that document the results of all tests, inspections, and audits conducted by the RFGS or its contractor in compliance with the plan. These records shall include, but are not limited to:

     (i) Start-up test records;

     (ii) Drug and alcohol test records;

     (iii) Training and certification records;

     (iv) Operation performance evaluation records;

     (v) Facility inspections;

     (vi) Maintenance audits and inspections (all systems and facilities);

     (vii) Rules and procedures review;

     (viii) Emergency response planning, coordination, and training;

     (ix) System modification review and approval process;

     (x) Safety and security data acquisition and analysis;

     (xi) Interdepartmental and interagency coordination;

     (xii) Employee safety and security program;

     (xiii) Hazardous materials program;

     (xiv) Contractor safety coordination; and

     (xv) Procurement records.

     These records shall be maintained by the RFGS for a minimum of three years.

     (2) Internal safety and security audits shall be documented in an annual report that includes the dates the audits were conducted, the scope of the audit activity, the audit findings and recommendations, the status of any corrective actions taken as a result of the audit activity and the results of each audit in terms of the adequacy and effectiveness of the plan. This annual report for the internal safety and security audits performed during the preceding year shall be included with the annual report required in WAC 468-550-070(5).

     (3) The department shall audit each RFGS plan at least once every three years. The RFGS shall be given written notification at least thirty days in advance of the department's audit. The notification shall include a proposed schedule, planned scope, and list of activities to be reviewed for the audit. Each audit shall be preceded by an on-site, preaudit conference attended by the department's audit team, the RFGS's owner, and the RFGS staff in charge of the activities subject to audit. Each audit shall be conducted in accordance with an audit checklist. Checklists shall not restrict the department from performing additional investigations as it deems appropriate. The department shall use as a basis for its checklist the RFGS's plan and records which shall include, but are not limited to:

     (a) The RFGS operating rule book, bulletins, and procedures;

     (b) The RFGS maintenance manuals and procedures for vehicles, track and signals;

     (c) The RFGS procedures for identifying, documenting, evaluating, and correcting hazards;

     (d) The RFGS system design criteria and project engineering procedures for system modifications;

     (e) The RFGS annual internal audit reports for the previous three years;

     (f) The RFGS corrective action plans for reportable accidents and unacceptable hazardous conditions reported to the department during the previous three years;

     (g) APTA audit reports;

     (h) National Transportation Safety Board accident investigation reports, and any other agency peer review reports, if any, prepared during the previous three years and previously prepared department audit reports.

     Each RFGS shall reimburse the reasonable expenses of the department in carrying out its responsibilities of this subsection within ninety days after receipt of an invoice. The department shall notify the RFGS of the estimated expenses at least six months in advance of when the department audits the system.

     (4) Upon the department's completion of the triennial on-site audit, the audit team leader shall prepare a draft final audit report and submit it to the RFGS. The RFGS shall respond, in writing to the recommendations made in the draft final audit report, with a plan and schedule of corrective actions within thirty days of receipt thereof. An on-site, post audit conference shall be held following each departmental audit to review the results of the audit. Audit results that identify a deficiency that is not corrected before the post audit conference is held shall be documented in the final audit report. The final audit report shall contain the department audit team's findings and recommendations and the RFGS plan and schedule for corrective action. The final audit report shall also include the department audit team's evaluation of the effectiveness of the RFGS plan and a determination of whether the plan should be updated.

     (5) The department shall summarize oversight activities for all RFGS performed during the preceding twelve months in a publicly available annual report and submit it to the FTA before March 15 of each year.

     (6) Each RFGS that operates seasonally shall be exempt from the provisions of this section.

[Statutory Authority: 1999 c 202 § 7. 99-18-059 (Order 193), § 468-550-060, filed 8/30/99, effective 9/30/99. Statutory Authority: RCW 43.06.120. 98-19-052, § 468-550-060, filed 9/15/98, effective 10/16/98.]

     (a) Name and title of the person making the notification;

     (b) Time and date the notification is transmitted;

     (c) Synopsis of what happened, such as, but not limited to: Collision with another RFGS revenue vehicle, derailment, collision with a motor vehicle, collision with a pedestrian, collision with a bicyclist, fire, bomb threat, or hostage-taking;

     (d) Specific location of the accident or unacceptable hazardous condition;

     (e) Time of the accident or discovery of the unacceptable hazardous condition;

     (f) Identification of RFGS vehicle(s) and/or facility involved;

     (g) Initial number of fatalities and/or individuals who suffered bodily injury and immediately received medical ((treatment)) attention away from the scene of the accident; and

     (h) Description of and preliminary value of property damage.

     (2) The department has authority to perform separate, independent investigations of reportable accidents or unacceptable hazardous conditions at its own discretion.

     (3) Each RFGS shall investigate all reportable accidents and unacceptable hazardous conditions. The RFGS may use its own staff or a contractor to conduct its investigation and shall designate a staff person to be responsible for submitting written investigation reports and findings to the department, on a department form, within forty five calendar days after the reportable accident or unacceptable hazardous condition was discovered. This report shall identify the causal factors contributing to the occurrence and contain a corrective action plan with an implementation schedule to prevent a recurrence of the accident, or to mitigate the unacceptable hazardous condition.

     (4) The department shall review the RFGS investigation report, corrective action plan, and accompanying implementation schedule to ensure that it meets the goal of preventing and mitigating a recurrence of the reportable accident or unacceptable hazardous condition. In the event that the department does not concur with the findings of the RFGS investigation, the department shall confer with the RFGS of its preliminary review findings. The RFGS may amend its report to the department in writing, within ten calendar days after conferring with the department. If, after conferring with the RFGS, the department does not concur with the findings of the RFGS, the department shall notify the RFGS in writing of its review findings. The RFGS shall submit its response to the department's findings within forty-five calendar days of receipt thereof. Should the department and the RFGS disagree, the department will notify the FTA.

     (5) Each RFGS shall submit an annual summary report to the department covering all reportable ((occurrences)) activities. The RFGS shall ensure delivery of the annual report to the department no later than ((January 15)) February 1 after the year being reported. ((The annual summary report shall be submitted whether any reportable event occurred or any unacceptable hazardous condition was identified during the previous year.))

[Statutory Authority: 1999 c 202 § 7. 99-18-059 (Order 193), § 468-550-070, filed 8/30/99, effective 9/30/99. Statutory Authority: RCW 43.06.120. 98-19-052, § 468-550-070, filed 9/15/98, effective 10/16/98.]

     (a) System safety and security program plan by September 1, 1999, or within three months prior to beginning operations;

     (b) Internal safety and security audit schedule for the next year by ((January 15)) February 1;

     (c) Annual report for the internal safety and security audits performed during the preceding year by ((January 15)) February 1;

     (d) Annual summary report to the department covering all reportable occurrences by ((January 15)) February 1;

     (e) Written investigation reports and findings within forty-five calendar days after a reportable accident occurred, or unacceptable hazardous condition was discovered.

     (2) If any RFGS notified by the department fails to deliver the required documentation by the due date specified in subsection (1) of this section, the department shall schedule a meeting with the director responsible for the RFGS's operations and maintenance to discuss the RFGS's progress in completing the documentation and the potential consequences of further delay. In scheduling this meeting, the department shall notify the RFGS's chief executive officer of the purpose of the meeting and its time and location. The department shall attempt to schedule the meeting within one week of the specified due date.

     (a) The department may cancel this meeting if the department receives the required documentation prior to the scheduled meeting.

     (b) The department may defer scheduling the meeting in the event of a catastrophic event affecting the RFGS and its ability to conduct routine business.

     (c) The department shall document the results of the meeting in writing to the director responsible for the RFGS's operations and maintenance and the RFGS's chief executive officer within one week of the meeting.

     (d) Should the department determine that there is no reasonable cause for any further delay by the RFGS for submission of its required documentation, the department shall notify the RFGS's chief executive officer of the applicable financial penalty, as defined in subsection (5) of this section.

     (e) If the department receives no further communication from the RFGS within ten calendar days of the notification made in accord with (d) of this subsection, the department shall proceed to notify FTA of the RFGS's failure to supply the required documentation and to apply the appropriate financial penalty in accord with subsection (5) of this section.

     (3) If any RFGS delivers incomplete documentation by the required due date, the department shall notify the RFGS of any deficiency within one week. The RFGS shall supplement its required documentation within one week after receiving the department's notification. If the RFGS fails to supplement its documentation adequately, the department shall proceed to schedule a meeting and follow the procedures in subsection (2) of this section.

     (4) If any RFGS fails to implement a corrective action plan, according to the implementation schedule developed pursuant to WAC 468-550-070(4), to prevent a recurrence of an accident or to mitigate an unacceptable hazardous condition, the department shall schedule a meeting with the director responsible for the RFGS's operations and maintenance to discuss the RFGS's progress in completing the corrective action plan and the potential consequences of further delay.

     (a) The department may cancel this meeting if the department receives the required documentation prior to the scheduled meeting.

     (b) The department may defer scheduling the meeting in the event of a catastrophic event affecting the RFGS and its ability to conduct routine business.

     (c) The department shall document the results of the meeting in writing to the director responsible for the RFGS's operations and maintenance within one week of the meeting.

     (d) Should the department determine that there is no reasonable cause for a RFGS's failure to implement the corrective action plan, the department shall notify the RFGS's chief executive officer that the department intends to notify FTA of the RFGS's noncompliance.

     (e) If the department receives no further communication from the RFGS within ten calendar days of the notification made in accord with (d) of this subsection, the department shall notify FTA of the RFGS's failure to implement a corrective action plan action.

     (f) This subsection shall apply also to a corrective action plan upon which the department and the RFGS disagree. In this situation, the department shall use the corrective action plan and implementation schedule proposed by the RFGS.

     (5) Any RFGS that fails to comply with the timelines as set forth in this chapter shall be assessed the financial penalties following:

     (a) One thousand five hundred dollars for each calendar month beginning October 1999, or two months prior to beginning operations, for failure to deliver to the department an acceptable system safety and security program plan;

     (b) Five hundred dollars for each calendar month, beginning with February, for failure to deliver to the department an acceptable:

     (i) Internal safety and security audit schedule for the next year;

     (ii) Annual report for the internal safety and security audits performed during the preceding year; or

     (iii) Annual summary report to the department covering all reportable occurrences; and

     (c) One thousand dollars applied each thirty-day period, beginning the 90th day after a reportable accident occurred, or after an unacceptable hazardous condition was discovered for failure to deliver to the department an acceptable investigation report, corrective action plan, and accompanying implementation schedule.

     (6) If FTA notifies the department that it will impose a financial penalty on the state of Washington as a consequence of a RFGS's failure to take appropriate action in a safety or security situation, the department shall:

     (a) Notify that RFGS's chief executive officer that the department will impose all FTA financial penalties to that RFGS if the RFGS fails to take adequate action to bring itself into compliance to FTA's satisfaction. Said notice shall include a copy of FTA's written communication and an estimate of FTA's financial penalty.

     (b) Recommend steps to the RFGS' chief executive officer that the RFGS should take to bring it into compliance with FTA requirements.

     (7) Any RFGS notified by the department of its failure to take appropriate action in a safety or security situation shall take immediate and adequate action to bring itself into compliance to FTA's satisfaction and provide adequate documentation to the department of its corrective measures. The department shall provide that documentation to FTA.

     (8) If any RFGS notified by the department of its failure to take appropriate action in a safety or security situation also fails to respond to the department and FTA imposes a financial penalty on the state of Washington as a consequence, the department shall apply the full amount of the financial penalty on the RFGS.

     (9) In applying any financial penalty, the department shall take the following steps:

     (a) Invoice the RFGS for the amount of financial penalty; the invoice shall identify:

     (i) The documentation not received by the specified due date;

     (ii) The number of calendar months or, for failure to deliver to the department an acceptable investigation report, corrective action plan, and accompanying implementation schedule, thirty-day periods past the specified due date;

     (iii) The applicable financial penalty rate per calendar month or, for failure to deliver to the department an acceptable investigation report, corrective action plan, and accompanying implementation schedule, thirty-day periods; and

     (iv) Where payment should be made.

     (b) If a RFGS fails to remit the full amount of the imposed financial penalty within sixty days of when due, the department may seek judicial enforcement to recover full payment. Venue for any action hereunder shall be Thurston County.

[Statutory Authority: 1999 c 202 § 7. 99-18-059 (Order 193), § 468-550-080, filed 8/30/99, effective 9/30/99.]

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