8. Is AirTrain Subject to Regulation Under GO 164-B?

Having decided that the AirTrain is subject to the Commission's safety regulation under § 99152, we turn to SFO's contention that it cannot be bound by the requirements of GO 164-B.

GO 164 was adopted by the Commission on September 20, 1996, to implement the provisions of § 99152 and related federal regulations.4 It was amended on September 3, 1997, and on December 2, 1999, and is currently the subject of further proposed amendments in Order Instituting Rulemaking (R.) 02-01-009.5

Under GO 164-B, operators of fixed guideway systems are required to prepare a system safety program plan that conforms to industry and Federal Transit Administration guidelines. The safety plan and any subsequent amendments must be submitted to the Commission for review and approval. Commission staff is authorized to inspect the design, construction and operation of the guideway system to assure compliance with safety and security procedures. At least once every three years, Commission staff is required to conduct an on-site review of the system's compliance with the safety program.

The general order also requires an annual internal safety audit by the operator and sets requirements for investigating and reporting accidents and unacceptable hazardous conditions. In their Joint Statement of Undisputed Facts, SFO and Staff agreed that SFO shared some (but not all) information with staff in connection with a collision of empty AirTrain trolleys on August 5, 2002. While no one was injured in that collision, damage to the trolleys was extensive.

SFO argues that GO 164-B is applicable only to "rail" fixed guideway systems, not to fixed guideway systems that operate on rubber tires. We do not agree. The general order derives its authority from § 99152, which applies to "[a]ny public transit guideway planned, acquired, or constructed, on or after January 1, 1979." It is not surprising that GO 164-B focuses on rail fixed guideway systems since, at the time of adoption of these regulations, all public transit guideways in the state operated on rails.

Rule 2.6 of GO 164-B defines a "rail fixed guideway system" as one that is (a) under the Federal Transit Administration route mileage formula or receives federal funding, and (b) not regulated by the Federal Railroad Administration. SFO points out, correctly, that the AirTrain does not fit this definition because it is not part of the route mileage formula and does not receive federal funding.

Nevertheless, since § 99152 applies to any public transit guideway, and since § 99152 makes such guideways subject to the safety oversight program developed by the Commission, the safety requirements of GO 164-B (the safety oversight program) clearly are intended to apply to the AirTrain.

We take official notice that amendments to GO 164-B proposed by Staff in R.02-01-009 include a revised definition of a fixed guideway system to encompass "automated guideway transit system used for public transit" and to eliminate the federal mileage and funding provision. Pending that revision, the Commission in our decision today orders SFO to comply with the safety rules

contained in GO 164-B under the general authority granted to us in § 99152.

We conclude that SFO in its operation of the AirTrain must develop a system safety program plan, perform the internal safety audit requirements, and investigate and report accidents and unacceptable hazardous conditions in the manner required by GO 164-B.

Finally, we dismiss as irrelevant SFO's suggestion that it should not be subject to the safety jurisdiction of the Commission because similar guideway systems in Atlanta, Chicago and other cities are not subject to state regulatory safety requirements. The California Legislature has concluded that the safety of certain mass transit systems is a matter of statewide concern as well as local concern, and it has historically required that the Commission's rail safety engineers inspect and monitor such systems. (See, e.g., Pub. Util. Code § 99220; City of San Mateo v. Railroad Com. (1937) 9 Cal.2d 1.)

Because Staff in this proceeding seeks only to assert the requirements of § 99152 and GO 164-B, we find it unnecessary at this time to address the applicability to the AirTrain operations of GO 143-B (Safety Rules and Regulations Governing Light-Rail Transit) and GO 127 (Automatic Train Control Systems).

We rule as follows on the issues identified in Commissioner Brown's Scoping Memo for this proceeding:

1. SFO's AirTrain people-mover system is subject to the Commission's safety jurisdiction under § 99152, and SFO has failed to show a lack of jurisdiction by the Commission.

2. SFO's AirTrain system is subject to pertinent requirements of the oversight program (GO 164-B) developed to implement § 99152.

3. Because staff seeks only to assert the requirements of § 99152 and GO 164-B, we do not at this time address the requirements of GO 143-B and GO 127.

4 49 USC 5330; 49 CFR Part 659 (Rail Fixed Guideway Systems, State Safety Oversight). 5 "Order Instituting Rulemaking into the issues of safety certification for rail transit agencies and other public transit guideways."

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