Discussion

Because the only comments we received in response to the OIR are from VTA, this decision principally resolves conflicts between proposed GO 164-D and the position of VTA on certain matters. Except for those VTA concerns, the proposal is not controversial. The uncontested provisions are mostly verbatim adaptations of the federal rule, and they are rationally related to the subject matter they address. Apart from making some minor corrections and editorial changes, we adopt the uncontested portions of the proposed rule without further discussion.

VTA objects to two specific features of the proposed rule. First, it objects to language that would delegate to Staff the functions of reviewing and approving three types of reports that are required pursuant to 49 CFR Part 659, on the grounds that the federal rule requires formal agency approval. Second, it objects to allowing public disclosure of investigative reports and corrective action plans.

VTA asserts that formal Commission approval (rather than simply Staff approval) is required for three types of reports: Internal Safety and Security Annual Reports under section 5.5 (d); Final Accident Investigation Reports under section 8.3 (e); and Corrective Action Plans under section 9.4. In each instance the federal rule specifies that the report to be adopted (or approved) formally by the oversight agency. (49 CFR Part 659.35 (e) ("A final investigation report must be formally adopted by the oversight agency for each accident investigation."); 49 CFR Part 659.27 (i) ("The oversight agency must formally review and approve the annual [internal safety and security review] report."); 49 CFR Part 659.37 (c) ("The corrective action plan must be reviewed and formally approved by the oversight agency.").) The wording of these provisions implies that formal action is required, and only the Commission has the power to take such action.³

We recognize that real expertise in rail safety matters resides with Staff. Particularly in matters involving highly technical questions about safety and service of the entities we regulate, we rely on the recommendations of staff personnel who are trained as engineers and other experts. The proposed GO 164-D identifies the requirements of reports and plans the RTAs must submit which provides clear guidance to Staff upon which to evaluate compliance.⁴ When Staff and the RTA are in agreement on the contents of the reports and plans, we delegate to Staff authority to approve these reports and plans by formal letter. Such delegation is appropriate when the oversight agency provides, as we do here, clear guidance to Staff in the exercise of that delegated authority and where such delegation serves the further purpose of supporting system safety and security. Furthermore, as part of the record to this proceeding, staff submitted a March 12, 2007 letter from FTA concluding that the staff delegation provisions in the proposed GO 164-D are consistent with Part 659.

In order to facilitate informal discussion and action by Staff, we have fashioned our rules to encourage Staff and the RTAs to engage in discussion of controversial reports as much as possible before such reports are presented to the Commission for a vote of approval. We should only be called upon to intervene actively where the parties simply cannot come to agreement. In such instances we have no alternative but to consider the record and make a formal decision based upon our best judgment. We expect that such instances will be exceedingly rare.

The question VTA has raised about the confidentiality of investigation reports and security plans relates to 49 CFR Part 659.11, which states:

(a) A state may withhold an investigation report that may have been prepared or adopted by the oversight agency from being admitted as evidence or used in a civil action for damages resulting from a matter mentioned in the report.

(b) This part does not require public availability of the rail transit agency's security plan and any referenced procedures.

The purport of this rule is twofold: First, to preclude the use of investigation reports prepared or adopted by the Commission as evidence in litigation in the courts; and second, to permit an RTA to shield its security plan and referenced procedures from public view. VTA expresses concern about the likelihood that both of these types of documents may become public under the terms of the proposed rule, and states that problems which have arisen in the industry require their confidentiality to be preserved.

The issue of limiting the use of investigative reports in the state's courts is a jurisdictional one. As VTA correctly observes, the Commission, an administrative agency of the state, lacks the power to bind either state or federal courts. That power is vested generally in the legislative branch of the government or, on a case-by-case basis, in the judiciary. We cannot issue a rule that would limit the use of investigative reports in court, because we lack the power to do so. However, in these rules we reiterate the proscription against the admissibility of accident investigations and recommendations of the Commission, and of accident reports filed with the Commission, contained in an existing statute. Public Utilities Code section 315 states in pertinent part:

Neither the order or recommendation of the commission [relating to investigation of an accident on the property of an RTA or connected with its maintenance or operation, resulting in loss of life or injury to person or property] nor any accident report filed with the commission shall be admitted as evidence in any action for damages based on or arising out of such loss of life, or injury to person or property.

We believe this addresses VTA's concerns.

The Commission does have the additional power to maintain the confidentiality of security plans and procedures, and frequently does so, in the exercise of its plenary power to control its proceedings. We invoke this protection most frequently to maintain the confidentiality of proprietary information of parties that come before us, but there is ample reason to protect the documents about which VTA is concerned as well. In the wrong hands these documents could provide valuable intelligence about the vulnerabilities and defenses of entire transit systems, making California vulnerable to acts that could cause catastrophic damage and loss of life.

Rule 11.4 of the Commission's Rules of Practice and Procedure (Rules) provides:

(a) Motions to file documents or portions of documents under seal shall attach a proposed ruling that clearly indicates the relief requested.

(b) Responses to motions to file documents, or portions of documents, under seal shall be filed and served within 10 days of the date that the motion was served.

This rule provides an effective procedure to enable parties to seek and obtain protection for highly sensitive documents filed in Commission proceedings. In the event that a party's request to file a document under seal is contested, the matter is resolved by an administrative law judge (ALJ) under the Commission's law and motion rules. Rule 11.5 provides a similar procedure for sealing the evidentiary record, or portions of the record, if the matter is decided after a hearing.

These provisions in the Commission's Rules sufficiently ensure that an RTA seeking to maintain the confidentiality of this class of documents will be able to do so effectively and expeditiously. We have revised the proposed rule to address this concern.

³ VTA does not assert that formal Commission approval is required for any other report that may be prepared under 49 CFR Part 659.

⁴ See proposed GO 164-D, specifically sections 3.2, 4.3, 5.5, 8.3, and 9.2 for the Commission's clear guidance to staff.