prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 1.



Report 2: In the United States, both FRA and FTA regulate rail transportation safety  FRA oversees safety of railroads operating on what is known as the general system, a network of standard gage track over which goods may be transported and passengers may travel  This system includes freight railroads, which typically own their own tracks and locomotives, transporting products among states and regions  FRA also oversees safety of intercity passenger and commuter railroads that operate over tracks owned by freight railroads and other entities  FTA oversees safety of rail transit systems that typically serve individual metropolitan areas, using track not shared with freight and other passenger trains  Rail transit includes a variety of modes, such as heavy and light rail, streetcars, automated guideways, cable cars, and others  Rail transit is an important component of the nation’s transportation network, particularly in large metropolitan areas  Rail transit systems provided over 4 4 billion passenger trips in 2016  “Heavy rail” systems in large cities account for much of the total rail transit activity, including 88 percent of passenger trips in 2016  According to FTA, 61 rail transit systems within 28 states, the District of Columbia, and Puerto Rico are subject to safety oversight by one of the 31 agencies in FTA’s state safety oversight program (see fig  1)  The states have long played a central role in conducting safety oversight of rail transit systems  The Intermodal Surface Transportation Efficiency Act of 1991 required, among other things, that states with rail transit operators designate an agency to oversee the safety of those systems, known as a state safety oversight agency  In overseeing state safety agencies, FTA designed the program as one in which FTA, states, and rail transit operators collaborate to ensure the safety and security of rail transit systems  However, limitations have been identified in the state safety oversight program  In 2006, we reported on some state safety agency challenges in overseeing rail transit safety  Specifically, we found many of the state safety agencies lacked enough qualified staff and adequate levels of training to meet their responsibilities  In a 2009 hearing before the Subcommittee on Highways and Transit of the House Committee on Transportation and Infrastructure, then Secretary Ray LaHood of the Department of Transportation discussed some of the weaknesses under the current state safety oversight program and introduced a public transportation safety legislative proposal  In 2010, various bills were introduced in both houses of Congress that would have provided FTA with various enforcement mechanisms and with the authority to issue safety regulations  Additionally, the bills would have required the Secretary to establish a federal certification program for employees and contractors who carry out a state public transportation safety program  In the 112th Congress, the Senate amended a House bill to include a public transportation safety provision, which eventually became section 20021 of MAP-21, the federal public transportation safety program  MAP-21 enhanced FTA’s authority to oversee the safety of rail transit, potentially addressing some of the weaknesses identified by various stakeholders  Specifically, MAP-21 established a comprehensive Public Transportation Safety Program, which continues to rely on state safety agencies to monitor rail transit systems’ safety operations  MAP-21 required that, within 3 years of the effective date of a final state safety oversight program rule, each eligible state have in place a state safety oversight program certified by FTA  An eligible state must, among other things, establish a state safety agency and determine, in consultation with FTA, an appropriate staffing level for this state agency that is commensurate with the number, size, and complexity of the rail transit systems within the state  Additionally, a state safety agency must be financially and legally independent from any rail transit system it oversees and have investigative and enforcement authority with respect to the safety for its rail transit systems, among other things  Each eligible state has until April 15, 2019, to receive FTA approval of its state safety oversight program, or else FTA will be prohibited from obligating certain federal financial assistance to any entity in the state that is otherwise eligible to receive that federal financial assistance  After that approval, state safety agencies will be evaluated for continued compliance with FTA regulations a minimum of once every 3 years through a triennial review process  According to FTA, these requirements represent a dramatic increase in federal expectations for state safety oversight and for the rail transit industry  MAP-21 also established a state safety oversight grant program, offering federal funding to states for their state safety activities  FTA’s Office of Transit Safety and Oversight administers the state safety oversight program  Freight and passenger railroads have played a transformational role in the development of America and continue to be an important part of the economy  The general railroad system consists of a vast network of operations (see fig  2)  The $60 billion freight rail industry is operated by seven Class I, and hundreds of smaller, railroads  In addition, about 40 railroads move passengers, which carry greater than 670 million passengers per year  The federal government has long provided regulatory oversight of railroad safety, both passenger and freight, that operate on the general system  The Interstate Commerce Commission, the first federal regulatory commission in U S  history, was established in 1887 to regulate interstate commerce by rail  The Commission’s safety functions were transferred to FRA, which was created by the Department of Transportation Act in 1966  In its role as federal regulator and overseer of railroad safety, FRA prescribes and enforces railroad safety regulations and conducts research and development in support of improved railroad safety and rail transportation policy  FRA utilizes safety inspectors and specialists, primarily covering five safety disciplines, to review and enforce compliance with these regulations  FRA’s safety disciplines are track, signal, and train control; motive power and equipment; operating practices; and hazardous materials  Following several fatal rail accidents between 2002 and 2008, the Rail Safety Improvement Act of 2008 was enacted, the first authorization of FRA’s safety programs since 1994  This act directed FRA to, among other things, issue new safety regulations for different aspects of railroad safety, such as hours of service requirements for passenger railroad workers, positive train control implementation, track inspection rules, and safety at highway-rail grade crossings  FRA’s Office of Railroad Safety administers the agency’s safety program  Rail transportation is a relatively safe way to transport people and products though serious incidents continue to occur on railroads and rail transit  According to an analysis of DOT’s Bureau of Transportation Statistics data by the American Public Transportation Association, travel by rail transit is far safer than automobile travel  From 2000-2014, for instance, there were 6 53 and 0 33 fatalities per billion passenger-miles traveled in cars or light trucks and rail transit, respectively  Within rail travel, the fatality rates on both railroads and rail transit operators have remained similar in recent years  Further, the rate of accidents and incidents—including collisions and derailments—also do not appear to differ substantially between railroads and rail transit in recent years  Nevertheless, serious incidents continue to occur on railroads and rail transit, posing safety risks to passengers, railroad employees, and the public  For example, in June 2009, two WMATA trains collided, resulting in 52 injuries and 9 deaths  A smoke incident on WMATA’s Metrorail system in January 2015 also resulted in the death of 1 person and injured over 90  In a 10-month period from May 2013 to March 2014, the Metro- North commuter railroad, which serves New York and Connecticut, was involved in five accidents that resulted in the death of 6 people and 126 injured  In June 2016, two BNSF Railway freight trains collided near Panhandle, Texas, resulting in the death of three crew members  Incidents such as these have prompted investigations into both the causes and contributing factors of the specific accidents as well as broader rail safety oversight  FRA has a more centralized safety oversight program for railroads, while FTA is implementing changes to the rail transit oversight program, established in federal statute, which relies on states to monitor and enforce safety  Key characteristics of both programs include: (1) the establishment of safety regulations, (2) inspections and other oversight activities, such as audits and investigations, based on those regulations, and (3) enforcement mechanisms to ensure that safety deficiencies are addressed (see fig  3)  FRA has developed extensive railroad safety regulations over decades  FRA’s railroad safety regulations include requirements governing track design and inspection, grade crossings, signal and train control, mechanical equipment including locomotives, and railroad-operating practices including worker protection rules  For example, FRA’s regulations for track and equipment include detailed, prescriptive minimum requirements, such as formulas that determine the maximum allowable speeds on curved track  Many of FRA’s rail safety regulations establish minimum safety requirements, though railroads can apply for waivers  As FRA updates its safety regulations, it has proposed more performance-based regulations in recent years  Many of FRA’s current safety regulations specify the behavior or manner of compliance that railroads must adopt, such as inspecting each locomotive at least every 92 days  Performance-based regulations, however, specify a desired outcome rather than a behavior or manner of compliance  For example, FRA’s recent rulemaking to amend its passenger equipment safety regulations proposes performance-based crashworthiness and occupant protection requirements, rather than explicit targets or tolerances  According to FRA, establishing performance requirements in these areas would allow a more open rail market that incorporates recent technologies  FTA is currently assessing the need for rail transit safety regulations, having been provided the authority to issue safety regulations in 2012  Since MAP-21 was enacted, FTA has finalized regulations implementing the public transportation safety program authorized by statute  These include regulations that establish rules for FTA’s administration of a comprehensive safety program to improve rail transit safety as well as updated regulations governing state safety oversight of rail transit  In addition to its public transportation safety program regulations, FTA also has regulations governing its drug and alcohol testing program  MAP-21 also authorized FTA, for the first time, to issue rail transit safety regulations, which would establish minimum safety performance requirements for rail transit operators, as part of its requirement to develop a National Public Transportation Safety Plan  FTA initiated a regulatory development effort after the passage of MAP-21, which included a compilation and evaluation of existing transit safety standards, guidance, and best practices from the federal government, states, industry, and other sources  After the evaluation, FTA issued a report that concluded there was limited documentation or evidence of the effectiveness of these existing rail transit safety standards  The report included recommendations that are intended to enable FTA to undertake further data-driven, risk-based analysis of rail transit safety performance and the applicability and effectiveness of the identified safety standards  FTA is also currently analyzing specific focus areas to determine any areas that should be addressed by federal safety regulations  For example, FTA is studying the need for regulations related to rail transit vehicle crashworthiness  Since no federal rail transit safety regulations that establish minimum safety performance requirements for rail transit operators currently exist, rail transit operators are subject to different safety standards, depending largely on what voluntary standards they have chosen to adopt, according to American Public Transportation Association officials we spoke with  The American Public Transportation Association, for instance, has issued a variety of rail transit safety standards, addressing various aspects of the industry including operations, training, and inspections  In addition, states vary in the extent to which they have regulations for rail transit operators  For example, officials from the California Public Utilities Commission noted that it has issued a variety of safety regulations applicable to rail transit operators within the state of California to improve safety of rail operations  Both FRA and FTA have mechanisms to gather the input of stakeholders—including rail operators, labor unions, industry associations, and others—when considering development of safety regulations  In developing most of its safety regulations, FRA seeks input from stakeholders through its Railroad Safety Advisory Committee  In 1996, FRA established this committee to develop new regulations through a collaborative process, with the rail community working together to create mutually satisfactory solutions to safety issues  FTA is collaborating with stakeholders as it assesses the need for rail transit safety regulations  More specifically, FTA’s research partner, the Center for Urban Transportation Research, established a working group to collaborate with industry stakeholders to inform the safety regulations development process  FTA also solicited comments from industry stakeholders on its compilation of existing rail transit safety standards  More broadly, FTA also has a Transit Advisory Committee for Safety, which provides information, advice, and recommendations to FTA on safety matters  FRA fulfills its mission, in part, through safety compliance audits and inspections, and investigations  FRA ensures compliance with its safety regulations through inspections, using a staff of railroad safety experts, inspectors, and other professionals assigned to eight regional offices across the nation  For example, to determine a railroad’s compliance with FRA safety regulations, inspectors examine track, equipment, signal devices, employee actions, and procedures and review maintenance and accident records  Additionally, 31 states have rail safety programs that partner with FRA  Under this approach, FRA enters into agreements with states to allow state inspectors to participate in investigative and surveillance activities concerning federal railroad safety laws  State inspectors who participate in this program submit inspection reports to FRA  More broadly, FRA’s inspections are guided by a risk-based model  Under this approach, FRA focuses its inspections on locations that, according to the data-driven model, are likely to have safety problems  Like other operating administrations within DOT, FRA has relatively few resources for overseeing railroads, compared with the size of the general system  The risk-based model is designed to help FRA target the greatest safety risks  FRA has begun utilizing automated inspections as well  In particular, according to FRA, new imaging technologies have the potential to better inspect track for cracks in the rail that could lead to breakage as well as measure the track’s geometry to ensure that rails are positioned to meet standards  To further promote safety in railroad operations, FRA conducts accident investigations  Separate from investigations conducted by NTSB, FRA investigates select railroad accidents to determine root causation, and any contributing factors, so that railroad properties can implement corrective actions to prevent similar incidents in the future  Resources for railroad safety oversight activities have increased in recent years  FRA was appropriated about $218 million in fiscal year 2017, an increase over the approximately $187 million it received in fiscal year 2015, for safety and operations, which funds FRA’s personnel, including inspectors, and safety programs  According to FRA, Congress provided FRA with increased funding in recent years for the purpose of increasing staffing related to specific safety issues, such as trespasser prevention and passenger rail safety  As part of this effort, FRA has hired additional inspectors, going from 347 inspectors in fiscal year 2013 to over 360 currently, out of the nearly 930 total full-time equivalent staff  FRA officials told us, as we have reported in the past, that it can be difficult to recruit, train, and certify qualified inspectors in a timely manner, especially in certain areas of expertise  Further, according to FRA, its inspectors have the ability to inspect less than 1 percent of the general system annually  Though FTA now has more robust inspection authorities, states will continue to conduct front-line rail transit safety oversight activities  MAP- 21 provided FTA with new authorities to inspect, audit, and investigate practices at rail transit agencies, including safety practices, while also preserving the role of state safety agencies to monitor rail transit systems’ safety operations  According to FTA officials, any federal inspections of rail transit operators are intended to supplement a state safety agency’s oversight activities, except where FTA assumes temporary, direct oversight of a rail transit system from an inadequate state safety agency  FTA officials told us that establishing a nationwide safety inspection program at the federal level is inconsistent with the statutory framework of the state safety oversight program and with congressional intent, which contemplates preserving the primary role of state safety agencies in providing direct safety oversight of rail transit systems  The officials also noted that the state-based approach to rail transit safety oversight is valuable because states are generally closer to, and more familiar with, rail transit operators  To date, FTA has utilized its new inspection authorities only on WMATA’s rail system  As part of oversight activities, some state safety agencies have conducted inspections of the rail transit systems they oversee, though they were not required to do so, according to FTA officials we spoke with  To strengthen states’ abilities to conduct oversight activities, FTA has recommended that state safety agencies develop risk-based inspection programs  Further, to ensure the independence of state safety agencies, these agencies cannot receive funding from the rail transit entities they oversee  Resources for FTA’s rail transit safety oversight administrative expenses have remained relatively stable in recent years, though more are needed, according to FTA  Since fiscal year 2012, FTA’s appropriations for administrative expenses, which funds FTA personnel and support activities including the Office of Transit Safety and Oversight, has increased $14 million, to about $113 million in fiscal year 2017, according to FTA  However, for several years, FTA has averaged about 508 total full-time equivalent staff agency-wide, and a little over 30 safety staff in the Office of Transit Safety and Oversight  According to FTA, the Office of Transit Safety and Oversight has been under-resourced since it was established in response to new safety authority provided in MAP-21  For fiscal year 2018, FTA requested in their submission for the President’s Budget proposal funding to hire up to an additional 20 positions for various lines of safety work  FRA’s and FTA’s oversight activities also include regular audits of, and communication with, the rail operators under their oversight  Given finite resources and large rail networks, FRA and FTA audit rail operators’ own inspections rather than conducting comprehensive federal inspections  More specifically, FRA inspectors, and state safety agencies in FTA’s oversight program, regularly examine records of rail operators’ internal inspections to identify safety deficiencies  Officials from FRA, FTA, and five rail stakeholders we spoke with told us that FRA and FTA rail safety oversight programs also rely on collaboration and communication between rail operators and regulators to ensure safety  For example, regular meetings between FRA and railroad staff to discuss safety trends and industry developments are important to ensuring safety, according to officials we spoke with from FRA and the railroads  FRA specialists and inspectors participate, with representatives of railroad labor and management, in the implementation of voluntary safety programs  For example, FRA sponsors the Confidential Close Call Reporting System, a voluntary, confidential program allowing railroads and their employees to report accident and incident “close calls ” According to FRA officials, voluntary programs such as this increase industry awareness of railroad safety and engagement with it  FTA also collaborates with state safety agencies as rail transit safety issues arise, according to FTA officials, using federal oversight and enforcement authorities as a “back-stop” against the oversight of state safety agencies  Additionally, according to officials we spoke with from FTA and two rail transit operators, state safety agency staff meet with rail transit operators regularly, using knowledge of local operating conditions to help ensure safety  FRA uses a variety of tools, including civil penalties, to resolve safety issues  While some safety issues are resolved informally through discussion and collaboration between FRA and railroads, as noted above, some defects identified during inspections are classified as violations and subject to financial penalties  More specifically, when railroads do not resolve issues in a timely manner or identified defects are serious, FRA has the authority to cite violations and assess civil penalties, against either railroads or individuals  Further, as authorized by law, FRA negotiates settlements with railroads and other entities subject to its safety jurisdiction to resolve claims for civil penalties  In fiscal year 2016, FRA assessed over $11 8 million in civil penalties against railroads  According to FRA, fiscal year 2016 was the second year in a row that it took steps to increase penalty amounts paid by railroads, as part of a continued effort to increase consequences for violations that negatively affect safety  To ensure the safety of rail transit systems, states will continue to be the primary enforcers of safety requirements, according to FTA officials, though FTA now has more enforcement tools  MAP-21 preserved the role of state safety agencies as the primary enforcement body for rail transit  FTA has now required that state safety agencies have enforcement authorities sufficient to compel action from rail transit entities to address safety deficiencies  Though no specific authorities are required, FTA has suggested that a variety of mechanisms could be appropriate, such as the ability to remove deficient equipment from service or assess fines  According to FTA, this requirement is designed to overcome a long- standing vulnerability in state safety oversight, which allowed safety deficiencies to remain for long periods of time  MAP-21 and the FAST Act also provided FTA with more options for enforcement when rail transit operators are found to be out of compliance with safety requirements  In particular, FTA can withhold federal funding for rail transit operators or direct a rail transit operator to use federal funding for a specific purpose  Additionally, after FTA assumes temporary direct oversight of an inadequate state safety agency, FTA can withhold federal funds from the state until the state safety oversight program has been certified  To date, FTA has utilized this authority only with the states responsible for safety oversight of WMATA’s rail system  In February 2017, FTA announced that it would withhold 5 percent of fiscal year 2017 urbanized area formula funds from Maryland, Virginia, and the District of Columbia until a new state safety oversight program is certified for WMATA’s rail system  This action built upon FTA’s determination that WMATA’s state safety agency was ineffective at “providing adequate oversight consistent with prevention of substantial risk of death or personal injury ” FRA and FTA also have the authority to directly intervene in rail operations  In particular, both FRA and FTA can suspend the service of rail operators in response to certain safety concerns  Additionally, FTA can assume direct safety oversight of a rail transit operator if FTA determines the state safety oversight program is not adequate, among other things  In response to safety incidents on WMATA’s rail system, FTA assumed temporary and direct safety oversight of WMATA in October 2015, as previously noted
Report 2:  the United States tends to underinvest in dual-use technologies  National security requirements alone often do not justify major DOD support, and market prospects alone often appear to be too long-term or high risk to justify US industry carrying the entire development burden     The committee encourages use of cooperative agreements and other transactions in lieu of grants or contracts     The provision would require that at least 50 percent of funding over the life of a partnership derive from non-federal sources but would allow for a smaller industry share at the start  The conference report stated that the partnerships should focus on programs that fit into the security needs within DARPA  The conference report also stated that OTs are appropriate for those cases where the "regulations applicable to the allocation of patent and data rights under the procurement statutes may not be appropriate to partnership arrangements in certain cases " National Defense Authorization Act for FY1993 ( P L  102-484 ) Cost Sharing Section 4221 established 10 U S C  2511, which required DOD to establish cooperative arrangements with industry, educational institutions, federal labs, and other entities, to pursue research, development, and application of dual-use technologies  The section authorized DOD to use grants, contracts, cooperative agreements, or OTs to create these partnerships, and that the Federal government should not contribute more than 50% of the costs related to projects under this authority  National Defense Authorization Act for FY1994 ( P L  103-160 ) Expanded Authority Section 827 established 10 U S C  2358, which gave the Secretary of Defense and the Secretaries of the military departments the authority to conduct basic, advanced, and applied research through the use of contracts, cooperative agreements, grants, and OTs  Previously, OTs were only authorized for advanced research  Prototype Authorities Section 845 granted DARPA the authority to use OTs for prototype projects directly related to weapons or weapon systems proposed to be acquired by DOD  Section 845 required that "to the maximum extent practicable," prototypes be competitively awarded  This authority was set to terminate after three years  Section 845 remained as a note to 10 U S C  2371 until separately codified as 10 U S C  2371b in the FY2016 NDAA ( P L  114-92 )  Federal Acquisition Streamlining Act of 1994 ( P L  103-355 ) Section 1301 redesignated the language in 10 U S C  2358 (granting the authority to use OTs) to 10 U S C  2371  Reporting Requirements Section 1301 also required DOD to submit an annual report to the armed services committees, to include a general description of the other transactions, including the technologies involved in the research, the potential military and, if any, commercial utility of such technologies, the reasons for not using a contract or grant to provide support for such research, and the amount of payments, if any, received during the fiscal year pursuant to a clause in the other transactions and to what accounts such payments were credited  National Defense Authorization Act for FY1997 ( P L  104-201 ) Section 203 required that a senior DOD official be designated in OSD, and that the officials' sole responsibility be developing policy related to, and ensuring implementation of, DOD's dual-use technology program  This section authorized DOD to use OTs (as well as contracts, cooperative agreements, and grants) for dual-use projects only if the project "is entered into through the use of competitive procedures " Section 743 granted DOD the authority to use OTs to conduct research on Gulf War Syndrome, to determine its relationship to possible exposures of members of the Armed Forces to chemical warfare agents and hazardous materials, and the use of inoculations and new drugs  Expanded Prototype Authorities Section 804 amended Section 845 of the FY1994 NDAA by extending to the military departments and officials designated by the Secretary of Defense, the authority to use OTs for certain prototype projects  This authority, originally granted solely to DARPA and set to expire after three years, was given a new termination date of September 30, 1999  Reporting Requirements Section 267 modified elements of the annual report to the armed services committees  National Defense Authorization Act for FY1998 ( P L  105-85 ) Section 832 amended 10 U S C  2371 by clarifying that certain information submitted to DOD (i e  a proposal, business plan, technical information) be protected from disclosure pursuant to 5 U S C  552 for a period of five years  Strom Thurmond National Defense Authorization Act for FY1999 ( P L  105-261 ) Section 241 extended the sunset day for the authority to use OTs for prototypes from September 30, 1999, to September 30, 2001  Section 817 amended Section 2371 of Title 10, United States Code, clarifying that information submitted by outside parties in cooperative agreements for basic, applied, and advanced research is protected from disclosure under Section 552 of Title 5, United States Code  Department of Defense Appropriations Act, 1999 ( P L  105-262 ) While the enacted FY1999 defense appropriations bill ( P L  105-262 ) did not include legislative language addressing OTs, H Rept  105-591 , which accompanied the House-reported version of H R  4103 , included language expressing the House Appropriations Committee's "serious reservations" regarding the Air Force's then-proposed use of an OT agreement—instead of a contract— to develop the Evolved Expendable Launch Vehicle (EELV) program  The committee noted that "under [OTs] traditional safeguards which protect the government's interest in large acquisition programs are largely absent," and required the Under Secretary of Defense for Acquisition, Technology, and Logistics (now the Under Secretary of Defense for Acquisition and Sustainment) and the DOD Inspector General to certify to the congressional defense committees that the use of an OT was appropriate for the EELV program, and that "adequate safeguards exist[ed] to protect the government's interest and monitor program performance " National Defense Authorization Act for FY2000 ( P L  106-65 ) Section 801 required that for prototypes using OT authorities, DOD ensure that GAO, under its audit authority, have access to records relating to other transaction prototype agreements exceeding $5 million  Section 801 allowed for a waiver to GAO access and exempted entities that over the last year have not entered into an agreement with DOD that provided for audit access by a government entity  According to the Senate report: Senior DOD officials have sought legislation to extend other transaction authority to production contracts  Under current authority, there is some debate about whether GAO has audit access to other transactions  As the size, costs, and complexity of programs being funded using other transactions increases, the committee wants to ensure that the GAO has audit access in relation to the higher levels of spending and added risks  Reporting Requirements The Senate report also addressed reporting requirements and congressional intent to review the use of OTs  The report stated the following: The committee is assessing the utility of other transaction prototype authority  The statement of managers accompanying the Strom Thurmond National Defense Authorization Act of 1999 directed the Secretary of Defense to report on the use of this authority to the congressional defense committees, no later than March 1, 1999  In addition, both the Department of Defense Inspector General and the General Accounting Office are reviewing the use of other transaction prototype authority and will report to Congress in the coming year  The committee is interested in the extent that new commercial firms are entering the DOD marketplace through the use of other transaction authority, as well as the degree of cost sharing between the government and non-federal government parties  The committee is also interested in any lessons learned from the broad exemptions to federal law provided by other transaction authority  For example, other transactions are exempt from the Competition in Contracting Act, Truth in Negotiations Act, Contract Disputes Act, Antikickback Act of 1986, Procurement Integrity Act, Service Contract Act, Buy American Act, and chapter 137 of title 10, United States Code  Questions have been raised about whether the government's interest is adequately protected in the absence of the applicability of these statutes  Conversely, advocates of the view that the government should take advantage of the flexibility of other transactions have championed proposals to extend other transaction authority to production  The committee directs the Secretary of Defense to provide a new report that updates information in the March 1999 report on the use of other transaction prototype authority to the congressional defense committees by February 1, 2000  National Defense Authorization Act for FY2001 ( P L  106-398 ) Limitations on the Use of OTs Section 803 limited the use of OTs for prototype projects to only those circumstances when at least one nontraditional defense contractor significantly participates in the project, one-third of the total cost of the project is paid out of funds provided by parties to the transaction other than the federal government, or the senior procurement executive determines in writing that exceptional circumstances justify use of an OT  Nontraditional defense contractor was defined as an entity that for a period of one year has not entered into or performed "any contract that is subject to full coverage under the cost accounting standards" or "any other contract in excess of $500,000 to carry out prototype projects or to perform basic, applied, or advanced research projects for a Federal agency, that is subject to the Federal Acquisition Regulation '' Section 803 also extended the authority to use OTs for prototypes from September 30, 2001, to September 30, 2004  According to the Senate report, the intent of using OTs for prototypes is to attract companies that typically do not do business with the Department of Defense and encourage cost sharing and experimentation in potentially more efficient ways of doing business with traditional defense contractors  Other transaction authority is an important acquisition tool that can facilitate the incorporation of commercial technology into military weapon systems  In an environment where, in many areas, commercial technology is now more advanced than defense technology, it is imperative that the Department continue to have the flexibility to use innovative contractual instruments that provide access to this technology  There are, however, improvements that can be made in managing and overseeing these contractual arrangements  Section 804 clarified the extent of GAO's access to records in instances where the party in question has only done business with the government in the preceding year through an OT or cooperative agreement  National Defense Authorization Act for FY2002 ( P L  107-107 ) Expanded Authority—Follow-on Production Section 822 of the FY2002 NDAA granted DOD the authority to award a follow-on production contract for prototype projects when at least one-third of the total cost of the prototype project is to be paid out of funds provided by non-federal government sources  Under this authority, such a follow-on contract could be awarded without competition if the prototype project was successfully completed, the number of units in the production contract does not exceed the number of units specified in the underlying prototype agreement, and the price for each unit does not exceed the price specified in the underlying transaction  Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act, 2002 ( P L  107-117 ) Establishment of Army Venture Capital Initiative (AVCI) Section 8150 designated $25 million of the FY2002 funds made available for Army Research, Development, Test, and Evaluation (RDT&E) to be made available to the Secretary of the Army for the purpose of funding a venture capital investment corporation established pursuant to 10 U S C  2371  A 2014 RAND report stated that OT authorities were used only to form the AVCI, and were not used to acquire products or services: "While OT authorities were used to form [AVCI] itself, any volume of the Army's purchase of products and services from [AVCI] companies is conducted under the FAR " National Defense Authorization Act for FY2004 ( P L  108-136 ) Expanded Authority Section 847 of the FY2004 NDAA extended the authority to use an OT for developing prototypes to improve weapons or weapon systems currently in use by the Armed Forces  Previously, such authority was restricted to prototypes "directly relevant to weapons or weapon systems proposed to be acquired or developed" by DOD  Section 847 also established a pilot program for transitioning prototypes to follow-on contracts for production for nontraditional defense contractors  Under the pilot program, such a follow-on contract could be treated as a commercial item or an item developed with both federal and private sector funds (for purposes of negotiating intellectual property rights)  The pilot program was restricted to contracts with nontraditional defense contractors, where the value of the contract does not exceed $50 million (approximately $70 million in FY2018 dollars), and that are firm-fixed price or fixed price with economic adjustment  The pilot program was set to sunset September 30, 2008  Section 1441 authorized any agency that engages in basic, applied, or advanced research and development projects that facilitated defense against or recovery from terrorism or nuclear, biological, chemical, or radiological attack to exercise the same general authority given to DOD as found in 10 U S C  2371 (including for prototype projects)  Reporting Requirements Section 1031 sunset the annual reporting requirement for OT after the report covering FY2006 was submitted  National Defense Authorization Act for FY2006 ( P L  109-163 ) Restricted Authority and Notification Requirements Section 212 of the FY2006 NDAA directed the Army to procure the Future Combat System using contract procedures set forth in part 15 of the Federal Acquisition Regulation, in lieu of an OT  Section 823 extended ethics requirements to OT prototype authority and required the congressional defense committees be notified in writing at least 30 days before such authority is exercised  Certification Requirements Section 823 also amended Section 845 of the FY1994 NDAA, requiring a written determination by a senior procurement executive for other transaction prototype projects estimated between $20 million and $100 million, and for a written determination by the Under Secretary of Defense for Acquisition, Technology, and Logistics for prototype projects that exceed $100 million  According to the Senate report: Section 845 was intended to be used for limited prototype projects, particularly those in which the Department seeks to engage nontraditional defense contractors that may be averse to the requirements imposed by a standard Department procurement contract  For this reason, the statement of managers accompanying the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Public Law 105–261) states: The conferees continue to believe that the section 845 authority should only be used in the exceptional cases where it can be clearly demonstrated that a normal contract or grant will not allow sufficient access to affordable technologies  The conferees are especially concerned that such authority not be used to circumvent the appropriate management controls in the standard acquisition and budgeting process  …  The committee does not believe that the $20 9 billion agreement entered between the Army and the Lead Systems Integrator for the FCS program is consistent with the language and intent of section 845 authority  Section 845 authority is intended to be used for limited prototype projects, particularly those in which the Department of Defense seeks to engage nontraditional defense contractors that may be averse to the requirements imposed by a standard Department contract  Department of Defense Appropriations Act, 2007 ( H R  5631 ) Reporting Requirement The FY2007 defense appropriations bill ( P L  109-289 ) did not include language addressing OTs  The conference report ( H Rept  109-676 ) included language expressing the conferees' "[concern] with the continued use of OTA contracts by the Missile Defense Agency," as such contracts "lack the customary safeguards found under FAR-based contracts for organizational conflict of interest, truth in negotiations and submission of cost and pricing data " The conferees "strongly encourage[d]" the Missile Defense Agency to convert "large development and procurement contracts using OTA to FAR-based contracts," and directed the Missile Defense Agency to submit a report to the congressional defense committees on the use of OTs, to include the number, value, and justification for the use of such agreements  National Defense Authorization Act for FY2008 ( P L  110-181 ) Section 823 extended the authority for prototype projects for five more years, from September 30, 2008, to September 30, 2013  National Defense Authorization Act for FY2009 ( P L  110-417 ) Section 822 required DOD to issue guidance on rights in technical data under non-FAR agreements, including OTs  Section 822 also required that appropriate provisions relating to rights in technical data be included in non-FAR agreements, consistent with policy guidance  This requirements is in statute at 10 U S C  2320 note  Section 824 expanded the scope of the pilot program for transition to follow-on contracts for certain prototype projects to include research projects carried out under 10 U S C  2371  Authority to use the pilot program, set to expire September 30, 2008, was extended to September 30, 2010  Section 874 required OT data be included in the Federal Procurement Data System  National Defense Authorization Act for FY2011 ( P L  111-383 ) Section 866 changed the definition of nontraditional defense contractor, conforming the definition to that found in 10 U S C  2302(9)  National Defense Authorization Act for FY2013 ( P L  112-239 ) Section 863 extended the authority for using OTs for prototype projects from September 30, 2013, to September 30, 2018  Carl Levin and Howard P  "Buck" McKeon National Defense Authorization Act for FY2015 ( P L  113-291 ) Expanded Authority Section 812 expanded the authority to use OT for prototypes, to include those "directly related to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the Department of Defense, or to improvement of platforms, systems, components, or materials in use by the Armed Forces " Prior to the FY2015 NDAA, OTs could only be used for prototypes relating to weapons or weapon systems proposed to be developed, or for the improvement of weapons or weapon systems currently in use  Reporting Requirements Section 1071 repealed the reporting requirement language found in 10 U S C  2371, relating to OTs for research projects  National Defense Authorization Act for FY2016 ( P L  114-92 ) Until the FY2016 NDAA, the prototyping and follow-on production authority established in Section 845 of the FY1994 NDAA (as amended) was found in 10 U S C  2371 note  Section 815 of the FY2016 NDAA simultaneously repealed Section 845 of the FY1994 NDAA and put the repealed language into the newly created 10 U S C  2371b  The FY2016 NDAA also modified 2371b by making the authority permanent  Expanded Authority and Small Business The authorities in Section 2371b were expanded to allow their use when "all significant participants in the transaction other than the Federal government are small businesses or nontraditional contractors" and when the agency determines that using an OT would expand the defense supply base in a manner that could not be accomplished through a contract  Section 815 eased the restriction on follow-on production contracts or transactions  Section 815 amended the definition of a nontraditional defense contractor found in 10 U S C  2302 to be an entity that is not currently performing, and for one year prior to an OT has not performed on any contract or subcontract that is subject to full coverage under the cost accounting standards pursuant to Section 1502 of Title 41, U S C  Section 815 also required DOD to update its guidance to reflect changes in the statute  The conference report stated that Congress believed OTs are an attractive option for firms and organizations that do not usually participate in government contracting due to typical overhead burdens and the "one size fits all" rules governing defense acquisition  The report also stated that OTs could support DOD's effort to access new sources of technological innovation, specifically with Silicon Valley startup firms and small commercial firms  National Defense Authorization Act for FY2018 ( P L  115-91 ) Expanded Authority Section 216 of the FY2018 NDAA authorized nonprofit research institutions to enter into OTs with DOD for prototype projects  Section 862 amended 10 U S C  2358, granting the Secretary of Defense and the military departments the authority to pursue basic research, applied research, advanced research, and development projects under the OT authorities granted in Sections 2371 and 2371b of Title 10  Workforce Section 802 required DOD to establish a cadre of intellectual property experts to advise, assist, and provide resources to program offices who are developing intellectual property strategies for contracts and agreements  Section 863 required training and education for personnel involved in OTs and other innovative contracting methods  Certification Requirements and Small Business Section 864 adjusted the language of the statute to state that the dollar threshold relates to the specific transaction for a prototype project and not for the value of the entire project  Section 864 defined a transaction for follow-on production to include "all individual prototype sub-projects awarded under the transaction to a consortium of United States industry and academic institutions " Section 864 also increased the dollar thresholds for required approvals and defined the term small business to include small businesses under Section 9 of the Small Business Act to ensure that companies participating in the Small Business Innovation Research and Small Business Technology Transfer programs were considered small businesses for the purposes of the cost-sharing requirements  Miscellaneous Section 867 required the Secretary of Defense to establish a preference for OTs in the "execution of science and technology and prototyping programs " Section 1711 required DOD to carry out a pilot program to "assess the feasibility and advisability of increasing the manufacturing capability of the defense industrial base " Pursuant to the pilot, Section 1711 authorized DOD to use OTs to support production capabilities in small and medium-sized manufacturers  John S  McCain National Defense Authorization Act for FY2019 ( P L  115-232 ) Section 211 of the FY2019 NDAA clarified that follow-on production of a prototype or subproject within a consortium may occur if the individual prototype or subproject is complete; all projects associated with the consortium do not need to be completed before follow-on production of a specific prototype  Expanded Authority The FY2019 NDAA authorized the use of OTs to develop enhanced personal protective equipment (Section 226) and to carry out research under the Explosive Ordnance Disposal Defense Program (Section 311)  Reporting Requirements Section 244 required the Defense Innovation Unit to submit a report to Congress, to include the number of traditional and nontraditional defense contractors with DOD contracts or other transactions resulting directly from the unit's initiatives  Section 873 required DOD to submit an annual report through 2021, summarizing DOD's use of OTs, including organizations involved; number of transactions; amounts of payments; and purpose, description, and status of projects  Department of Defense Appropriations Act, 2019 ( P L  115-245 ) Reporting Requirements While the enacted FY2019 defense appropriations bill did not include legislative language addressing OTs, the conference report included language expressing the conferees' "[concern] with the lack of transparency surrounding the employment of OTA, particularly for follow-on production " The conferees directed DOD to provide quarterly reports to the House and Senate appropriations committees listing each active OT, and to include the following information on each agreement: funding military service or DOD component; major command (if applicable); contracting activity; appropriation title; budget line item; minimum and maximum award value; vendor; obligations and expenditures to date; product service code; period of performance; and indication if the OT agreement included an option for follow-on production (with a description of the scope of anticipated follow-on production)  The conferees also directed GAO to review DOD's use of OTs to determine whether the "employment of this authority conforms to applicable statutes and guidelines, to include the identification of any potential conflicts " GAO was also required to report on the extent to which OTs have been used since FY2016  Notification Requirements The House report to accompany H R  6157 acknowledged OTs as an "important tool to provide flexibility and agility for cutting-edge research and development projects and prototypes " However, the report stated its concern "with the lack of transparency on the use of OTA authority for follow-on production procurements," and directed that no funds could be obligated or expended for a follow-on production contract or a transaction carried out under 10 U S C  2371b, until 30 days after the Secretary of Defense provides the congressional defense committees with a notification of the proposed contract or transaction, to include a justification of why an OT is being used for production  Appendix B  Non-DOD Federal Agencies with Agency-Wide OT or Related Authorities A number of agencies have varying other transaction or similar authorities, as reflected in Table B-1   The table below is not a comprehensive or definitive listing of every federal government entity with OT or related authorities  In some instances, offices, agencies, commissions, and other federal government entities have OT or related authorities that are only associated with certain programs or projects, such as the National Institutes of Health (which has OT authority for such specific activities such as the National Heart, Blood Vessel, Lung, and Blood Diseases and Blood Resources Program [42 U S C  §285b-3] and the Cures Acceleration Network [42 U S C  §287a])  Appendix C  Reliability of Data on Other Transactions All data have imperfections and limitations  FPDS-NG data can be used to identify broad trends and produce rough estimates, or to gather information about specific contracts  Some observers say that despite their shortcomings, FPDS-NG data are substantially more comprehensive than what is available in most other countries in the world  Understanding the limitations of government procurement data—including knowing when, how, and to what extent to rely on data—can help policymakers incorporate FPDS-NG data more effectively into their decisionmaking process  FPDS-NG OT Data Quality and Accuracy Issues Decisionmakers should be cautious when using data from FPDS-NG to develop policy or otherwise draw conclusions, especially with respect to OTs  In some cases, the data themselves may not be reliable  In other instances, a query for particular data may return differing results, depending on the parameters and timing of the analysis  In particular, all DOD data entered into FPDS-NG are subject to a 90-day delay, and updates to "data, including new actions, modifications, and corrections are made on a regular basis," which could result in changes to "data     for current and/or prior fiscal years " Inconsistencies in FPDS-NG Data Within FPDS-NG, two primary collections of obligation data exist: one associated with standard government procurement contracts or modifications to such contracts, and the other associated with prototype OT agreements or modifications to such agreements  FPDS-NG's collection of prototype OT data allows for the input of additional data elements—such as nongovernment dollars associated with cost-share prototype OT agreements—not included in FPDS-NG's collection of standard government procurement contract data  More consequentially, FPDS-NG's prototype OT data include two similar data elements that allow users to identify the fiscal year a prototype OT agreement was signed or modified  One, labeled in the database as "Fiscal Year," appears to allow users entering data into the system to manually assign a fiscal year to a transaction  FPDS-NG users entering data into the system appear to have interpreted this data element in various, conflicting ways  For example, a Department of the Air Force OT agreement was signed in February 2016 for the development of rocket propulsion system prototypes under the Evolved Expendable Launch Vehicle (EELV) program  FPDS-NG records an obligation of $115 million in FY2020 for this agreement  Fiscal law bars DOD from obligating money now for future fiscal years that have not yet occurred  The second, labeled "Contract Fiscal Year," appears to be based on the date the prototype OT agreement was signed or modified  See Table C-1 for a comparison of the "Fiscal Year" and "Contract Fiscal Year" elements for selected new prototype OT agreements signed between FY2013 and FY2017  If a user selects the Fiscal Year data element when attempting to review high-level data on recent trends in the use of prototype OT agreements within DOD—such as the total amount obligated for prototype OT agreements on an annual basis—that user will obtain a substantially different result than if he or she selects the Contract Fiscal Year data element for a similar analysis  See Table C-2 for a comparison of action obligations and nongovernment contributions using the Fiscal Year and Contract Fiscal Year data elements for new prototype OT agreements signed between FY2013 and FY2017  DOD OT Data Analysis Methodological Issues in Congressional Reports A March 2017 report to Congress entitled "An Assessment of Cost-Sharing in Other Transaction Agreements for Prototype Projects," completed by the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics indicated that In FY2016, DOD obligated (Note: Two outliers in 2016 excluded) $1 billion in section 2371b awards and received $68 million in cost-share contributions after excluding two significant trend outliers  DOD cited FPDS-NG as the source for its analysis, and defined the "significant trend outliers" excluded as "two $40 million OTAs with total cost-share of $270 million," likely referring to two DARPA prototype OT agreements conducted on a cost-share basis initiated in FY2016  However, a CRS analysis of the same FPDS-NG data identified numerous inconsistencies in DOD's methodological approach  Recreation of DOD Methodology Specifically, DOD appears to have conducted its analysis using the "Fiscal Year" data element referenced in this report's discussion of FPDS-NG OT data quality and accuracy issues, which would attribute some prototype OT activities to the wrong fiscal year for the purposes of comparative trend analysis  DOD also compared two disparate transaction types: the reported "$1 billion in Section 2371b awards" includes all action obligations associated with ongoing prototype OT activities in FY2016, including transactions associated with prototype OT indefinite delivery contracts, while the "$68 million in cost-share contributions" includes only cost-share contributions associated with new prototype OT agreements  If DOD used the "Contract Fiscal Year" data element, excluded the identified "trend outliers," and focused on all action obligations and cost-share contributions associated with ongoing prototype OT activities, it would have found instead that the department obligated $1 4 billion for prototype OT agreements in FY2016, with an additional $313 5 million in cost-share contributions from the private sector  On the other hand, if DOD used the "Contract Fiscal Year" data element, excluded the identified "trend outliers," and focused on only action obligations and cost-share contributions associated with new prototype OT agreements, it would have found instead that the department obligated $400 million for prototype OT agreements in FY2016, with an additional $272 1 million in cost-share contributions from the private sector  Appendix D  Other Transaction Authority Statutes 10 U S C  §2371  Research projects: transactions other than contracts and grants (a) ADDITIONAL FORMS OF TRANSACTIONS AUTHORIZED — The Secretary of Defense and the Secretary of each military department may enter into transactions (other than contracts, cooperative agreements, and grants) under the authority of this subsection in carrying out basic, applied, and advanced research projects  The authority under this subsection is in addition to the authority provided in Section 2358 of this title to use contracts, cooperative agreements, and grants in carrying out such projects  (b) EXERCISE OF AUTHORITY BY SECRETARY OF DEFENSE — In any exercise of the authority in subsection (a), the Secretary of Defense shall act through the Defense Advanced Research Projects Agency or any other element of the Department of Defense that the Secretary may designate  (c) ADVANCE PAYMENTS — The authority provided under subsection (a) may be exercised without regard to Section 3324 of Title 31  (d) RECOVERY OF FUNDS — (1) A cooperative agreement for performance of basic, applied, or advanced research authorized by Section 2358 of this title and a transaction authorized by subsection (a) may include a clause that requires a person or other entity to make payments to the Department of Defense or any other department or agency of the Federal Government as a condition for receiving support under the agreement or other transaction  (2) The amount of any payment received by the Federal Government pursuant to a requirement imposed under paragraph (1) may be credited, to the extent authorized by the Secretary of Defense, to the appropriate account established under subsection (f)  Amounts so credited shall be merged with other funds in the account and shall be available for the same purposes and the same period for which other funds in such account are available  (e) CONDITIONS — (1) The Secretary of Defense shall ensure that- (A) to the maximum extent practicable, no cooperative agreement containing a clause under subsection (d) and no transaction entered into under subsection (a) provides for research that duplicates research being conducted under existing programs carried out by the Department of Defense; and (B) to the extent that the Secretary determines practicable, the funds provided by the Government under a cooperative agreement containing a clause under subsection (d) or a transaction authorized by subsection (a) do not exceed the total amount provided by other parties to the cooperative agreement or other transaction  (2) A cooperative agreement containing a clause under subsection (d) or a transaction authorized by subsection (a) may be used for a research project when the use of a standard contract, grant, or cooperative agreement for such project is not feasible or appropriate  (f) SUPPORT ACCOUNTS — There is hereby established on the books of the Treasury separate accounts for each of the military departments and the Defense Advanced Research Projects Agency for support of research projects and development projects provided for in cooperative agreements containing a clause under subsection (d) and research projects provided for in transactions entered into under subsection (a)  Funds in those accounts shall be available for the payment of such support  (g) EDUCATION AND TRAINING —The Secretary of Defense shall— (1) ensure that management, technical, and contracting personnel of the Department of Defense involved in the award or administration of transactions under this section or other innovative forms of contracting are afforded opportunities for adequate education and training; and (2) establish minimum levels and requirements for continuous and experiential learning for such personnel, including levels and requirements for acquisition certification programs  (h) REGULATIONS — The Secretary of Defense shall prescribe regulations to carry out this section  (i) Protection of Certain Information From Disclosure -(1) Disclosure of information described in paragraph (2) is not required, and may not be compelled, under Section 552 of Title 5 for five years after the date on which the information is received by the Department of Defense  (2)(A) Paragraph (1) applies to information described in subparagraph (B) that is in the records of the Department of Defense if the information was submitted to the Department in a competitive or noncompetitive process having the potential for resulting in an award, to the party submitting the information, of a cooperative agreement for performance of basic, applied, or advanced research authorized by Section 2358 of this title or another transaction authorized by subsection (a)  (B) The information referred to in subparagraph (A) is the following: (i) A proposal, proposal abstract, and supporting documents  (ii) A business plan submitted on a confidential basis  (iii) Technical information submitted on a confidential basis  10 U S C  §2371b  Authority of the Department of Defense to carry out certain prototype projects (a) AUTHORITY — (1) Subject to paragraph (2), the Director of the Defense Advanced Research Projects Agency, the Secretary of a military department, or any other official designated by the Secretary of Defense may, under the authority of Section 2371 of this title, carry out prototype projects that are directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the Department of Defense, or to improvement of platforms, systems, components, or materials in use by the armed forces  (2) The authority of this section- (A) may be exercised for a transaction (for a prototype project) that is expected to cost the Department of Defense in excess of $100,000,000 but not in excess of $500,000,000 (including all options) only upon a written determination by the senior procurement executive for the agency as designated for the purpose of Section 1702(c) of Title 41, or, for the Defense Advanced Research Projects Agency or the Missile Defense Agency, the director of the agency that- (i) the requirements of subsection (d) will be met; an d (ii) the use of the authority of this section is essential to promoting the success of the prototype project; and (B) may be exercised for a transaction (for a prototype project) that is expected to cost the Department of Defense in excess of $500,000,000 (including all options) only if- (i) the Under Secretary of Defense for Acquisition, Technology, and Logistics determines in writing that- (I) the requirements of subsection (d) will be met; an d (II) the use of the authority of this section is essential to meet critical national security objectives; and (ii) the congressional defense committees are notified in writing at least 30 days before such authority is exercised  (3) The authority of a senior procurement executive or director of the Defense Advanced Research Projects Agency or Missile Defense Agency under paragraph (2)(A), and the authority of the Under Secretary of Defense for Acquisition, Technology, and Logistics under paragraph (2)(B), may not be delegated  (b) EXERCISE OF AUTHORITY — (1) Subsections (e)(1)(B) and (e)(2) of such Section 2371 shall not apply to projects carried out under subsection (a)  (2) To the maximum extent practicable, competitive procedures shall be used when entering into agreements to carry out projects under subsection (a)  (c) COMPTROLLER GENERAL ACCESS TO INFORMATION — (1) Each agreement entered into by an official referred to in subsection (a) to carry out a project under that subsection that provides for payments in a total amount in excess of $5,000,000 shall include a clause that provides for the Comptroller General, in the discretion of the Comptroller General, to examine the records of any party to the agreement or any entity that participates in the performance of the agreement  (2) The requirement in paragraph (1) shall not apply with respect to a party or entity, or a subordinate element of a party or entity, that has not entered into any other agreement that provides for audit access by a Government entity in the year prior to the date of the agreement  (3) (A) The right provided to the Comptroller General in a clause of an agreement under paragraph (1) is limited as provided in subparagraph (B) in the case of a party to the agreement, an entity that participates in the performance of the agreement, or a subordinate element of that party or entity if the only agreements or other transactions that the party, entity, or subordinate element entered into with Government entities in the year prior to the date of that agreement are cooperative agreements or transactions that were entered into under this section or Section 2371 of this title  (B) The only records of a party, other entity, or subordinate element referred to in subparagraph (A) that the Comptroller General may examine in the exercise of the right referred to in that subparagraph are records of the same type as the records that the Government has had the right to examine under the audit access clauses of the previous agreements or transactions referred to in such subparagraph that were entered into by that particular party, entity, or subordinate element  (4) The head of the contracting activity that is carrying out the agreement may waive the applicability of the requirement in paragraph (1) to the agreement if the head of the contracting activity determines that it would not be in the public interest to apply the requirement to the agreement  The waiver shall be effective with respect to the agreement only if the head of the contracting activity transmits a notification of the waiver to Congress and the Comptroller General before entering into the agreement  The notification shall include the rationale for the determination  (5) The Comptroller General may not examine records pursuant to a clause included in an agreement under paragraph (1) more than three years after the final payment is made by the United States under the agreement  (d) APPROPRIATE USE OF AUTHORITY — (1) The Secretary of Defense shall ensure that no official of an agency enters into a transaction (other than a contract, grant, or cooperative agreement) for a prototype project under the authority of this section unless one of the following conditions is met: (A) There is at least one nontraditional defense contractor or nonprofit research institution participating to a significant extent in the prototype project  (B) All significant participants in the transaction other than the Federal Government are small businesses (including small businesses participating in a program described under Section 9 of the Small Business Act (15 U S C  638)) or nontraditional defense contractors  (C) At least one third of the total cost of the prototype project is to be paid out of funds provided by sources other than other than the Federal Government  (D) The senior procurement executive for the agency determines in writing that exceptional circumstances justify the use of a transaction that provides for innovative business arrangements or structures that would not be feasible or appropriate under a contract, or would provide an opportunity to expand the defense supply base in a manner that would not be practical or feasible under a contract  (2) (A) Except as provided in subparagraph (B), the amounts counted for the purposes of this subsection as being provided, or to be provided, by a party to a transaction with respect to a prototype project that is entered into under this section other than the Federal Government do not include costs that were incurred before the date on which the transaction becomes effective  (B) Costs that were incurred for a prototype project by a party after the beginning of negotiations resulting in a transaction (other than a contract, grant, or cooperative agreement) with respect to the project before the date on which the transaction becomes effective may be counted for purposes of this subsection as being provided, or to be provided, by the party to the transaction if and to the extent that the official responsible for entering into the transaction determines in writing that- (i) the party incurred the costs in anticipation of entering into the transaction; and (ii) it was appropriate for the party to incur the costs before the transaction became effective in order to ensure the successful implementation of the transaction  (e) Definitions —In this section: (1) The term "nontraditional defense contractor" has the meaning given the term under Section 2302(9) of this title  (2) The term "small business" means a small business concern as defined under Section 3 of the Small Business Act (15 U S C  632)  (f) FOLLOW-ON PRODUCTION CONTRACTS OR TRANSACTIONS — (1) A transaction entered into under this section for a prototype project may provide for the award of a follow-on production contract or transaction to the participants in the transaction  A transaction includes all individual prototype subprojects awarded under the transaction to a consortium of United States industry and academic institutions  (2) A follow-on production contract or transaction provided for in a transaction under paragraph (1) may be awarded to the participants in the transaction without the use of competitive procedures, notwithstanding the requirements of Section 2304 of this title, if - (A) competitive procedures were used for the selection of parties for participation in the transaction; and (B) the participants in the transaction successfully completed the prototype project provided for in the transaction  (3) Contracts and transactions entered into pursuant to this subsection may be awarded using the authority in subsection (a), under the authority of Chapter 137 of this title, or under such procedures, terms, and conditions as the Secretary of Defense may establish by regulation  (g) AUTHORITY TO PROVIDE PROTOTYPES AND FOLLOW-ON PRODUCTION ITEMS AS GOVERNMENT-FURNISHED EQUIPMENT — An agreement entered into pursuant to the authority of subsection (a) or a follow-on contract or transaction entered into pursuant to the authority of subsection (f) may provide for prototypes or follow-on production items to be provided to another contractor as Government-furnished equipment  (h) APPLICABILITY OF PROCUREMENT ETHICS REQUIREMENTS — An agreement entered into under the authority of this section shall be treated as a Federal agency procurement for the purposes of Chapter 21 of Title 41  10 U S C  §2373  Procurement for experimental purposes (a) AUTHORITY — The Secretary of Defense and the Secretaries of the military departments may each buy ordnance, signal, chemical activity, transportation, energy, medical, space-flight, and aeronautical supplies, including parts and accessories, and designs thereof, that the Secretary of Defense or the Secretary concerned considers necessary for experimental or test purposes in the development of the best supplies that are needed for the national defense  (b) PROCEDURES — Purchases under this section may be made inside or outside the United States and by contract or otherwise  Chapter 137 of this title applies only when such purchases are made in quantities greater than necessary for experimentation, technical evaluation, assessment of operational utility, or safety or to provide a residual operational capability 

ground_truth: When federal courts have analyzed and addressed "affirmative action" in higher education, they have done so in two distinct but related senses, both under the Fourteenth Amendment's guarantee of "equal protection." The first has its roots in the original sense of "affirmative action:" the mandatory use of race by public education systems to eliminate the remnants of state-imposed racial segregation. Because state-sanctioned race segregation in public education violates the Fourteenth Amendment's Equal Protection Clause, in certain cases involving a state's formerly de jure segregated public university system, a state's consideration of race in its higher education policies and practices may be an affirmative obligation. As the U.S. Supreme Court explained in its consequential 1992 decision United States v. Fordice, equal protection may require states that formerly maintained de jure segregated university systems to consider race for the purpose of eliminating all vestiges of their prior "dual" systems. Drawing upon its precedent addressing racially segregated public schools in the K-12 context, the Court established a three-part legal standard in Fordice for evaluating the sufficiency and effectiveness of a state's efforts in "dismantl[ing]" its formerly de jure segregated public university system. To that remedial end, mandatory race-conscious measures—in this de jure context—are not limited to admissions. Instead, remedies may also address policies and practices relating to academic programs, institutional missions, funding, and other aspects of public university operations. Outside this de jure context, "affirmative action" has come to refer to a different category of race-conscious policies. These involve what the Court at one time called the "benign" use of racial classifications—voluntary measures designed not to remedy past de jure discrimination, but to help racial minorities overcome the effects of their earlier exclusion. And for institutions of higher education, the Court has addressed one type of affirmative action policy in particular: the use of race as a factor in admissions decisions, a practice now widely observed by both public and private colleges and universities. The federal courts have come to subject these voluntary race-conscious policies—"affirmative action" in its perhaps more familiar sense—to a particularly searching form of review known as strict scrutiny. And even though this heightened judicial scrutiny has long been regarded as strict in theory but fatal in fact, the Court's review of race-conscious admissions policies in higher education has proved a notable exception, with the Court having twice upheld universities' use of race as one of many factors considered when assembling their incoming classes. The Court has long grappled with this seeming tension—between the strictness of its scrutiny and its approval of race-conscious admissions policies—beginning with its landmark 1978 decision in Regents of the University of California v. Bakke through its 2016 decision in Fisher v. University of Texas. Though the Equal Protection Clause generally concerns public universities and their constitutional obligations under the Fourteenth Amendment, federal statutory law also plays a role in ensuring equal protection in higher education. To that end, Title VI of the Civil Rights Act of 1964 prohibits recipients of federal funding—including private colleges and universities—from, at a minimum, discriminating against students and applicants in a manner that would violate the Equal Protection Clause. Federal agencies, including the Departments of Justice and Education, investigate and administratively enforce institutions' compliance with Title VI.

prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 2.

Report 1: The last several years have seen renewed debate over the role that race plays in higher education—a debate over "affirmative action " A high-profile lawsuit challenging Harvard University's consideration of race in admitting its incoming classes, and the recent withdrawal of Obama Administration-era guidance addressing similar race-conscious policies, have focused the debate on "affirmative action" in perhaps its more familiar sense: the voluntary consideration of student applicants' race as a way of increasing the participation of racial minorities in higher education  Meanwhile, a recent lawsuit involving Maryland's university system has brought renewed attention to "affirmative action" in its other, original sense: the mandatory use of race by public higher education systems to eliminate the remnants of state-imposed racial segregation  This report addresses "affirmative action" in each of these two senses and discusses how the federal courts have analyzed them under the Fourteenth Amendment's guarantee of "equal protection " The report first considers "affirmative action" in its original sense: the mandatory race-conscious measures that the federal courts have imposed on de jure segregated public university systems  The Supreme Court has made clear that a state that had a segregated system of education must eliminate all "vestiges" of that system, including through expressly race-conscious remedies  In its consequential 1992 decision United States v  Fordice , the Court charted a three-step inquiry for assessing whether a state has fulfilled that constitutional obligation, examining whether a current policy is traceable to the de jure segregated system, has continued discriminatory effect, and can be modified or practicably eliminated consistent with sound educational policy  Outside this de jure context, "affirmative action" has come to refer to a different category of race-conscious policies  These involve what the Court once called the "benign" use of racial classifications —voluntary measures designed not directly to remedy past governmental discrimination, but to increase the representation of racial minorities previously excluded from various societal institutions  And in the context of higher education the Court has addressed one type of policy in particular: the use of race as a factor in admissions decisions, a practice now observed by many public and private colleges and universities  As this report explains, the federal courts have come to subject these voluntary "affirmative action" policies to a particularly searching form of review, known today as strict scrutiny  And they have so far upheld those policies under a single theory: that the educational benefits that flow from a diverse student body uniquely justify some consideration of race when deciding how to assemble an incoming class  To rely on that diversity rationale, however, the Court now requires universities to articulate in concrete and precise terms what their diversity-related goals are, and why they have chosen those goals in particular  And even once those goals are established, a university must still show that its admissions policy achieves its diversity-related goals as precisely as possible, while ultimately "treat[ing] each applicant as an individual " Because both lines of cases discussed here have their roots in the Equal Protection Clause, this report focuses primarily on public universities, all of which are directly subject to constitutional requirements  But those same requirements apply equally to private colleges and universities that receive federal funds pursuant to Title VI of the Civil Rights Act of 1964 (Title VI or the Act), which similarly prohibits recipients of federal dollars from discriminating on the basis of race  This report concludes by discussing the role that Title VI plays in ensuring equal protection in higher education, both public and private, including several avenues for congressional action under the Act  Though government-sanctioned racial segregation in public education is commonly associated with primary and secondary schools, numerous states had also mandated or permitted racial segregation in institutions of higher education, including through the latter part of the 20 th century, categorically excluding black students solely because of their race  Though the Supreme Court held decades ago that state-sanctioned racial segregation in higher education violates the Equal Protection Clause, such intentional segregation, or practices arising from formerly de jure segregated university systems and their discriminatory effects, may still persist  Addressing such circumstances, the Supreme Court has held the Equal Protection Clause to require states to eliminate all vestiges of their formerly de jure segregated public university systems that continue to have discriminatory effect  As the Court concluded in United States v  Fordice , state actors "shall be adjudged in violation of the Constitution and Title VI [of the Civil Rights Act]" to the extent they have failed to satisfy this affirmative duty to dismantle a de jure segregated public university system  A state actor therefore remains in violation of the Equal Protection Clause today if it maintains a policy or practice "traceable" to a formerly de jure segregated public university system that continues to foster racial segregation  Where such a violation is shown, race-conscious measures are not only constitutionally permissible, but may be constitutionally required to remedy and eliminate such unconstitutional remnants  As in the K-12 context, a number of states maintained racially segregated public university systems and denied black students admission to post-secondary schools—including colleges, law schools, and doctoral programs —on the basis that these institutions educated white students only  Prior to 1954—the year of the Supreme Court's landmark Brown v  Board of Education decision ( Brown I ) —the Court had interpreted the Equal Protection Clause to permit state-sanctioned racially segregated public educational systems, provided that the separate schools for black students were substantially equal to those reserved for white students  For example, in its 1950 decision Sweatt v  Painter , the Court addressed an equal protection claim raised by a black student challenging the University of Texas Law School's denial of his admission based on his race, pursuant to its white-only admissions policy  At the time of the plaintiff's application in 1946, the state did not have a law school that admitted black students  Denying the plaintiff's requested relief for admission, the state trial court instead granted additional time to Texas to create a law school for black students; the state thereafter created a law school at the Texas State University for Negroes  The Supreme Court, however, held that the law school—which, among other features, lacked accreditation —did not offer an education "substantially equal" to that which the plaintiff would receive at the University of Texas Law School  On that basis—the absence of a separate but equivalent legal education—the Court held that the Equal Protection Clause required the plaintiff's admission to the University of Texas Law School  A decisive turn in the Court's interpretation and application of the Equal Protection Clause, however, came by way of its 1954 decision in Brown I   There, the Court held for the first time that race-based segregation "in the field of public education" violates the Equal Protection Clause  The Court concluded that race-based segregation in public schools deprives minority students of equal educational opportunities, and observed that segregation commonly denotes inferiority of the minority group  Segregated educational facilities, the Court concluded, are "inherently unequal " The Court's holding in Brown I applies with equal force to public higher education—that is, to public colleges and universities —as does the Court's subsequent 1955 decision in the same case (" Brown II "), in which the Court addressed how school authorities and federal courts were to implement the mandate of Brown I   Indeed, one of the Court's earliest applications of Brown I and Brown II was in the higher education context  In that case, State of Fla  Ex  Rel  Hawkins v  Board of Control , the Supreme Court vacated a Florida supreme court decision that declined to order the state's white-only law school to admit a black student  Relying on language in Brown II that courts could consider practical obstacles to a school's transition to desegregation, the Florida court refused to order the plaintiff's admission  The Supreme Court vacated the state court's decision, concluding that in the case of admitting a black student "to a graduate professional school, there [wa]s no reason for delay" and that he was "entitled to prompt admission under the rules and regulations applicable to other qualified candidates " Following Brown I and Brown II , the Court's equal protection jurisprudence in the public education context expanded significantly to address questions regarding the scope and sufficiency of state actions to "dismantle" racially segregated systems in public school districts across the country, and various challenges to district court-ordered remedies  As the Court revisited these legal standards over time, it continued to describe the affirmative duty of formerly segregated public school entities as the duty to "take all steps necessary to eliminate the vestiges of the unconstitutional de jure system" to the extent practicable  Turning to the context of higher education, the Court addressed, in its 1992 decision United States v  Fordice , how these equal protection principles and legal standards apply to a state's affirmative duty to dismantle a formerly de jure segregated public university system  Though it had "many occasions to evaluate whether a public school district has met its affirmative obligation to dismantle its prior de jure segregated system in elementary and secondary schools," the Court explained, Fordice presented the issue of "what standards to apply" in determining whether the state has met this obligation in the university context  At issue before the Court was Mississippi's prior de jure public university system  The Court observed that since establishing the University of Mississippi as an institution of "higher education exclusively of white persons" in 1848, Mississippi had created four more exclusively white institutions and three exclusively black institutions through 1950  Thereafter, it continued to maintain its racially segregated public university system, and admitted its first black student to the University of Mississippi in 1962 "only by court order " For the "next 12 years," the state's segregated university system "remained largely intact " Around 1987, when the case went to trial, over 99 percent of the state's white students attended the five universities that had been formerly white-only, while the three formerly black-only institutions had student bodies between 92 percent to 99 percent black  Citing its precedent addressing de jure segregation in the K-12 context, the Court stated that "[o]ur decisions establish that a [s]tate does not satisfy its constitutional obligations until it eradicates policies and practices traceable to its prior de jure dual system that continue to foster segregation " Perhaps critically, in the context of remedying a formerly de jure segregated system, a state's "adoption and implementation of race-neutral policies alone " is not sufficient to demonstrate that it has "completely abandoned its prior dual system " Aside from segregative admissions policies, the Court explained, a state's other policies may shape and determine student choice and attendance, and continue to foster segregation  Instead, to determine whether a state has satisfied its affirmative duty to dismantle its de jure public university system, the Court set out a three-step analysis  First , the analysis examines whether the challenged policy or practice maintained by the state is "traceable to its prior [ de jure ] system " By way of example, the Court identified four policies that, in its view, were "readily apparent" vestiges of de jure segregation: admissions standards based on a test-score range originally adopted for discriminatory reasons; unnecessary program duplication throughout the university system (e g , multiple institutions offering the same "nonbasic" courses); the state's academic mission assignments to its higher education institutions (e g , assigning the broadest academic missions to only formerly white-only institutions and the narrowest academic mission to a formerly black-only institution); and the continued operation of all public universities established in the de jure segregated system  With respect to traceability, the Court's analysis reflects that where a current policy functions based on distinctions or a framework created in a formerly de jure system, traceability can be shown  For example, when concluding that the state's designation of academic missions to its universities was traceable to de jure segregation, the Court cited evidence that the state's current method of assigning its universities into three academic missions levels largely mirrored a three-tiered grouping of its universities in the de jure system  In addition and more generally, an interim change or new, nondiscriminatory justification for a current policy does not necessarily sever its traceability to a de jure system  Where the traceability of a policy or policies is shown, a party need not show discriminatory intent with respect to those challenged policies  Where traceability is not shown—that is, where the policies "do not have such historical antecedents" to de jure segregation—an equal protection challenge would then require "a showing of discriminatory purpose " In those instances, the Court explained, "the question becomes whether the fact of racial separation establishes a new violation of the Fourteenth Amendment under traditional principles " Second , once traceability is shown, the analysis turns to whether those traceable policies have continued discriminatory or "segregative" effects in student choice, enrollment, or other facets of the university system  At this stage, the Court noted that a court should not consider "this issue in isolation," but rather examine the "combined effects" of all the challenged policies together "in evaluating whether the State ha[s] met its duty to dismantle its prior de jure segregated system " In light of this instruction, it appears the focus of the second step of the test is not on establishing causation between specific racial disparities and specific policies—by this stage, a court has already found traceability—but rather to evaluate whether a state has sufficiently dismantled its formerly de jure system  Consistent with the state's burden of proving it has dismantled its de jure segregated system, the state must show the absence of segregative effects; plaintiffs are not required to establish this second element  Third , because traceable policies that have discriminatory effects "run afoul of the Equal Protection Clause," such policies must accordingly "be reformed to the extent practicable and consistent with sound educational practices " Thus, at the third step, a court assesses whether traceable policies can be "practicably eliminated" "consistent with sound educational practices," with the burden on the state to show that the challenged policies are "not susceptible to elimination without eroding sound educational policy " Because the Court remanded the case to the lower court to address practicable elimination, its analysis in Fordice on this point is limited  The Court suggested, however, that if a current policy lacks sound educational justification, it reasonably follows that it can be practicably eliminated in part or in whole  In addition, the Court observed that in some cases, a merger or closure of institutions could be constitutionally required to eliminate vestiges, should other methods fail to eliminate their discriminatory effects  Finally, the Court repeatedly stated that so long as vestiges remain, which have discriminatory effects, the state remains in violation of the Equal Protection Clause unless it can show it cannot practicably eliminate those policies or practices  In addition, Justice O'Connor, in a separate concurring opinion in Fordice , emphasized the "narrow" circumstances under which a state could maintain a traceable policy or practice with segregative effects  In her view, courts may "infer lack of good faith" on the part of the state if it could accomplish educational objectives through less segregative means, and the state has a "'heavy burden'" to explain its preference for retaining the challenged practice  Moreover, even if the state shows that retaining certain traceable policies or practices is "essential to accomplish its legitimate goals," Justice O'Connor asserted that the state must still prove it has "counteracted and minimized the segregative impact of such policies to the extent possible " The Court in Fordice observed that the closure or merger of certain institutions may be constitutionally required, consistent with its holding that any vestige of a de jure segregated system that continues to have discriminatory effect must be eliminated to the extent practicable and consistent with sound educational policy  Yet that invited a new—and more difficult—set of questions: which institutions would be most subject to closure or merger, and under what circumstances would such action be required? Significantly, the Court did not categorically identify which institutions would be most subject to such remedial action —a state's flagship, formerly white-only institutions from which a de jure system originated, for example, or formerly black-only institutions created to preserve white-only admission at other institutions  Instead, the Court concluded that it was unable to determine—on the record presented in Fordice —whether closures or mergers were required in that case and directed the lower court on remand to "carefully explore" several considerations  This instruction to the lower court, while not part of the holding in Fordice , suggests that several factors are relevant for determining whether merger or closure is constitutionally required  In addition, the Court observed that maintaining all eight higher education institutions in Mississippi was "wasteful and irrational," particularly in light of the close geographic proximity between some of the universities  This observation suggests that close proximity between institutions offering similar programs could be a relevant factor in assessing remedial closure or merger as well  Regarding the fate of a state's historically black institutions, Justice Thomas, in a concurring opinion, did not read Fordice to "forbid[]" those institutions' continued operation or "foreclose the possibility that there exists 'sound educational justification' for maintaining historically black colleges as such  " Justice Thomas emphasized that "[d]espite the shameful history of state-enforced segregation," historically black colleges and universities were and remain institutions critical to the academic flourishing and leadership development of many students, and observed that "[i]t would be ironic, to say the least, if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges " In his view, though a state is not constitutionally required to maintain its historically black institutions as such, their continued operation is constitutionally permissible, so long as admission is open to all students "on a race-neutral basis, but with established traditions and programs that might disproportionately appeal to one race or another " Following Fordice , plaintiffs, including the United States in Title VI enforcement actions, have brought suit challenging practices allegedly traceable to a state's de jure segregated university system  Challenged practices have included unnecessary program duplication, which the Court identified in Fordice as one of the "readily apparent" remnants of de jure segregation, as well as others such as scholarship policies, funding practices, and the use of curricula at formerly white-only institutions with little representation of black history and culture  More recently, in 2018, a legal challenge against the State of Maryland alleged that practices relating to capital and operational funding, unnecessary program duplication, and the limited institutional missions of the state's formerly black-only institutions are traceable to the state's formerly de jure segregated higher education system  To date, however, only a few federal appellate courts have had occasion to analyze Fordice -based claims, and the Supreme Court has not, since its 1992 decision, addressed claims challenging higher education policies or practices as unconstitutional vestiges of de jure segregation  Though development of the Fordice standard in federal case law is limited, the few appellate decisions applying Fordice provide at least some analytical examples and reflect discernible differences in approach, particularly with respect to the evidence sufficient to satisfy the third element of the Fordice standard—that elimination of a practice is not possible, despite being traceable and having continued discriminatory effect  As discussed above, the Supreme Court in Fordice identified "unnecessary program duplication" as a practice traceable to the prior de jure segregated system of higher education at issue in that case, stating that "it can hardly be denied" that such duplication was a requisite feature of the prior dual system because "the whole notion of 'separate but equal' required duplicative programs in two sets of schools " Drawing upon that rationale, courts that have addressed unnecessary program duplication have generally had little difficulty tracing duplicative courses and degree programs to prior de jure segregation  On the matter of if and how program duplication might be eliminated, however, there is lesser consensus  Generally, federal courts have considered several methods for eliminating program duplication, such as transferring existing programs from one institution to another, eliminating certain programs altogether, creating cooperative programs, and—perhaps most drastically—merging institutions  Plaintiffs have also raised equal protection challenges to state funding practices that allocate all or most of their federal and state land grants to institutions that were formerly white-only in a de jure system while dedicating significantly less or no funds to formerly black-only institutions  More specifically, these cases have concerned a state's allocation of federal land grants provided annually to support research on agricultural issues and the dissemination or "extension" of that research  At issue in Knight v  Alabama , for example, was the State of Alabama's allocation of federal funds between its two land grant universities, Auburn University, formerly white-only in the de jure system, and Alabama A&M University (A&M), formerly established as black-only  The state allocated to Auburn the entirety of Alabama's approximately $4 million in federal aid for agricultural research, and allocated an additional $14 million to Auburn in state funds  Meanwhile, the state had "for years" allocated no federal aid to A&M and given state funds for agricultural research in amounts that "today still totals less than $200,000 each year " The U S  Court of Appeals for the Eleventh Circuit held that the state's current funding allocation was traceable to de jure segregation and instructed the lower court on remand to make determinations with respect to the second and third parts of the Fordice test  On the issue of practicable elimination, the Eleventh Circuit observed that reduced efficiency would not necessarily render a proposed modification impracticable or educationally unsound  By contrast, the Fifth Circuit affirmed a district court's ruling that permitted a state to retain its traceable funding practices  There, despite finding traceability and discriminatory effects, the district court had concluded, based on inefficiencies related to running more than one agricultural research program, that it was not practicable for the state to eliminate its exclusive funding allocation to its formerly white-only land grant institution  The Supreme Court has not revisited its analysis in Fordice , leaving open questions about the permissible applications of its three-part legal standard to an array of fact patterns and legal theories  Similarly, as discussed above, few courts of appeals have addressed claims under Fordice , limiting the development and interpretation of Fordice in federal case law  One such unresolved question is under what circumstances, if any, traceability can be established under Fordice when a state makes changes to an originally discriminatory policy such that the current policy functions differently, but there is still some evidence of traceability between the two, or perpetuation of similar segregative effects under the changed policy as under the original policy  In addition, the Supreme Court and circuit courts have not yet expressly addressed how far a district court may go in remedying an unconstitutional vestige or remnant of a prior de jure public university system  In the K-12 context, the Supreme Court has upheld district court orders that set certain faculty and student ratios at schools in noncompliant school districts, to desegregate them pursuant to Brown and its progeny   It remains unclear, however, whether the district courts enjoy similar authority under Fordice to order similarly extensive remedies  Indeed, the few cases alleging Fordice -type claims that did reach the federal appellate courts ultimately resolved in settlements, thus leaving little judicial guidance on the scope of a court's authority to mandate specific remedies if a state fails to dismantle its formerly de jure segregated public university system  With respect to these unresolved questions, the Supreme Court's express reliance in Fordice on precedent addressing de jure segregation in the primary and secondary school context suggests that at least some of this same precedent should inform future analyses, with adaptation to the higher education context  A finding of a state entity's intent to segregate students by race in the higher education context is critical to showing a violation of the Equal Protection Clause, and has significant legal consequences  In such cases of de jure —that is, intentional, state-imposed —segregation, the state has an affirmative duty under the Equal Protection Clause to eliminate all vestiges of its de jure system by dismantling the infrastructure and other mechanisms that produced the discriminatory segregation  According to the Supreme Court's 1992 Fordice decision, this duty commands more than just the repeal of state laws sanctioning racial segregation in higher education  The state must also uproot or reform any policy or practice "traceable" to its formerly de jure system that continues to have discriminatory effect  In Fordice , the state's intent to racially segregate its higher education system was plain: with the founding of the University of Mississippi in 1848, Mississippi explicitly set out to create a public university "dedicated to the higher education exclusively of white persons," and racially segregated its public university system over the next 100 years through the creation of other "exclusively white institutions" and "solely black institutions " Nor was Mississippi's system unique in this regard  "[D]ual system[s]" of public higher education—one for black students, another for white—were codified in other state and local laws throughout the country  Thus far, federal courts that have addressed de jure segregation in higher education have done so in the context of such codified segregation, as in Fordice   The absence of a codified dual system of higher education, however, may not mean that a university system was not or is not intentionally segregated  As reflected in the Supreme Court decision Keyes v  School District No  1, Denver, Colorado , even when state authorities have not segregated their public schools by statute, they may still have engaged in unconstitutional racial segregation  Thus, in the K-12 context, federal courts have found de jure segregation based on evidence reflecting a state actor's impermissible segregative intent  This line of cases would appear to apply in the context of higher education as well  As the Court noted in Fordice , where a plaintiff is unable to show that a policy or practice is a vestige of prior de jure segregation, she may nonetheless prove a "new" constitutional violation with evidence of a present-day intent to racially segregate students "under traditional principles" governing discriminatory intent  This would be consistent with the Court's application of Brown and its progeny broadly across "the field of public education," including higher education, as reflected in Fordice   Because the Supreme Court has yet to address segregative intent in higher education, it is unclear what intent evidence would be sufficient to establish a de jure segregated public university or institution, apart from a law codifying such segregation  As a general matter, though, a court's determination of discriminatory intent is a fact-intensive, "sensitive inquiry " And the Supreme Court has observed that this is even more so in cases alleging de jure segregation in public education  Where the evidence indicates, for example, that a state actor undertook a policy or practice knowing that doing so would have the "foreseeable" effect of segregating students by race, that evidence may support an inference of de jure segregation  In addition, at least in the K-12 context, a finding of a state entity's segregative intent in one part of a school system creates a rebuttable presumption that segregation found in other parts of the same system was also intentional  De jure segregation proved by such nonstatutory evidence generally triggers the same affirmative obligation on the state to eliminate the vestiges of its state-imposed segregation, as when de jure segregation is shown through state or local laws  Though segregative intent analyses at the K-12 level may be instructive, the guidance these decisions provide may be limited by the nature of the evidence at issue in those particular cases: the method of student assignment to elementary or secondary schools, for example, or the drawing of attendance zones to create racially segregated schools  It appears unlikely that such evidence would be at issue or directly applicable in cases alleging segregative intent at the collegiate or graduate level  Nonetheless, these decisions generally suggest that categorical distinctions—between evidence indicative of de jure segregation and evidence of existing segregation insufficiently linked to state intent—are difficult to draw  Indeed, given the difficulties that can arise in a court's analysis of "segregative intent," over the years a number of Justices have called into question the rationale and basis for the distinction between de jure and so-called de facto segregation, though the majority of the Court has recognized and continues to recognize this distinction  Whatever the open questions may be regarding the evidence sufficient to show segregative intent, particularly in the higher education context, Fordice instructs that a plaintiff need not provide evidence of new discriminatory intent when alleging that a state has failed to eliminate vestiges of a prior de jure segregated system  And with respect to remedying intentional racial segregation, the Court has repeatedly held that a state not only may use a broad array of explicit race-conscious policies and practices to remedy its constitutional violation, but often must do so  By themselves, race-neutral measures simply may not be enough, the Court has explained, to provide equitable, make-whole relief for intentionally segregative acts  This affirmative obligation to consider race arises, however, only in the context of de jure segregation  Outside that de jure context, institutions of higher education subject to the Equal Protection Clause have no such duty to remedy racial segregation  Nor may they—or the federal courts, for that matter—use the same broad array of race-conscious measures available for remedying de jure segregation  De jure segregation, however, is not the only context in which race-conscious measures in higher education may be used  For over forty years colleges and universities have considered race as a way of increasing the racial diversity of their student bodies, independent from a legal basis relating to de jure segregation  Thus far, however, the Supreme Court has addressed only one type of discretionary race-conscious measure in the higher education context: admissions policies  And when evaluating these discretionary policies, the Court reviews them under a notably different analytical lens, looking to their precision in achieving certain concretely defined and "compelling" educational interests, as explained more fully below  "Affirmative action" in its original sense grew out of the states' affirmative obligation under the Equal Protection Clause to rid their public institutions of the lingering vestiges of de jure segregation  But "affirmative action" has also come to refer to race-conscious policies developed outside this de jure context  These are policies voluntarily adopted by institutions to help racial minorities overcome the effects of their earlier exclusion  And unlike the measures ordered by the courts to right the wrongs of de jure segregation, these policies are strictly voluntary, with their legality consequently turning on constitutional considerations unlike those involved in the de jure context  "Affirmative action" in this more familiar, voluntary sense has also been among the most contentious subjects in constitutional law  In the forty years since Regents of the University of California v  Bakke , when the Court first addressed those programs' constitutionality, the Justices have divided sharply over when or whether such programs can survive constitutional scrutiny  And a major point of disagreement among the Justices—lingering to this day —is how strictly to review those policies and what the government or other state entity must do to justify its use of "benign" racial classifications  In recent decisions, the Court has reviewed such classifications under a seemingly "elastic" regime of strict scrutiny, accepting those classifications only where they have been narrowly tailored to serve compelling government interests  The constitutional guarantee of equal protection broadly prohibits the government from employing "arbitrary classification[s] " And the use of racial classifications in particular has long been of special concern for the courts  Indeed, this "heightened judicial solicitude" for racial categorizing has roots nearly as old as the Fourteenth Amendment itself  As the Supreme Court explained in an early decision under the Amendment, the "spirit and meaning" of the Equal Protection Clause was "that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race,     that no discrimination shall be made against them by law because of their color " In the decades since, the Court has only made clearer that it regards the government's use of racial classifications as "inherently suspect" and therefore subject to more demanding scrutiny than other classifications, which are typically reviewed only for basic rationality  There has been significant disagreement, however, over just how rigidly the courts should scrutinize a racial classification, especially when the point of the classification is to benefit racial minorities, as in the case of affirmative action  That issue came before the Court for the first time in Bakke , involving a challenge to an affirmative action admissions program begun at the then newly created medical school at the University of California at Davis (the Medical School)  And the Court's fractured decision there prefigured the central disagreements that the Justices still face in reviewing so-called "benign" racial classifications  In the early 1970s, not long after the Medical School opened, it adopted a race-conscious admissions policy to increase its enrollment of certain "disadvantaged" students  Under that policy, the school each year would set aside 16 seats in its entering class of 100 specifically for members of this "disadvantaged" group, to be admitted by a "special admissions" committee  Although many white students sought admission under this "special" policy, the committee considered only students of specifically identified racial minorities  After Allan Bakke, a white male, twice sought—and was denied—admission to the school, he brought suit challenging the set-aside under the Equal Protection Clause as well as Title VI, which prohibits institutional recipients of federal funds—like the Medical School—from discriminating on the basis of race  Bakke's case eventually found its way to the Supreme Court and into the hands of a divided bench  The Justices found themselves particularly at odds over the case's threshold question—what level of scrutiny the Court should apply in reviewing Bakke's challenge  Justice Stevens, writing for a quartet of Justices, concluded that the program violated Title VI, sidestepping the constitutional question  Another four Justices would have reached the equal protection challenge, and in doing so would have required the Medical School to point to "important governmental objectives" that justified its admissions policy's use of "remedial" racial classifications, along with evidence that their use was "substantially related to" achieving those important objectives   Under that standard—a form of intermediate scrutiny —these Justices would have upheld the policy  Justice Powell, announcing the Court's judgment but writing for himself, insisted that all "racial and ethnic distinctions" drawn by the government must be regarded as "inherently suspect," calling for "the most exacting judicial examination " What that meant in Bakke , according to Justice Powell, was that the Medical School would need to prove that its use of the "special admissions" carve-out was "precisely tailored to serve a compelling governmental interest"—the standard of review now known simply as strict scrutiny   And because, in his view, the school could come forward with no such proof, Justice Powell concluded that its affirmative-action policy could not survive the Court's scrutiny, whether under the Fourteenth Amendment or the overlapping standards of Title VI  Because Bakke yielded no majority opinion, it could only hint at how the Court might treat other "benign" race-conscious policies that did not involve the sort of apparent quota invalidated in that case or cases outside the unique context of higher education  That uncertainty would last another decade, as the Court, in another series of splintered decisions, weighed constitutional challenges to differently structured affirmative action policies in other contexts, each time without resolving the appropriate standard of review  That uncertainty appeared to abate with the Court's 1989 decision in Richmond v  J A  Croson , Co  There, for the first time, five Justices clearly signaled that they would apply strict scrutiny to affirmative action plans implemented at the state and local levels, including the program they invalidated in that case, involving the City of Richmond's set-aside of public work funds for minority-owned businesses  But the next year, in Metro Broadcasting, Inc  v  FCC , the Court, in another 5-4 ruling, suggested that it would review federal affirmative action plans differently  In the Court's view there, "benign race-conscious measures mandated by Congress " need only "serve important governmental objectives" and be "substantially related to the achievement of those objectives"—satisfying an intermediate level of scrutiny  Just a few years later, however, in Adarand Constructors, Inc  v  Peńa , the Supreme Court reversed course  There, in a federal contracting case, the Court drew a different lesson from its pre- Metro line of race-classification cases: in the view of the Adarand majority, "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny " That simple rule therefore precluded the divided regime upheld in Metro Broadcasting , subjecting the states' use of racial classifications to strict scrutiny, while relaxing the review of comparable classifications enacted by Congress  Instead, the Adarand Court held, "[f]ederal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest " And to the extent that Metro Broadcasting was "inconsistent" with that uniform rule, it was accordingly overruled  After Adarand strict scrutiny therefore became the test of any classification that subjected individuals to unequal treatment based on their race, no matter which state actor was doing the classifying  And the Court expressly extended that holding to the context of higher education  As the Court reaffirmed in Fisher v  University of Texas , "because racial characteristics so seldom provide a relevant basis for disparate treatment," "[r]ace may not be considered [by a university] unless [its] admissions process can withstand strict scrutiny " It therefore appears that a classification that subjects individuals to unequal treatment because of their race, even if for a "benign" purpose, will have to satisfy strict scrutiny  In its canonical formulation, that test calls for measuring such classifications along the two dimensions Justice Powell identified in Bakke : (1) the classification must serve a compelling governmental interest and (2) the use of that classification must also be narrowly tailored to achieving that interest  The government has the burden of proving both, and neither is easy to do  Indeed, in the sixty years that separated the Court's now-repudiated decision in Korematsu v  United States from Grutter v  Bollinger , when the Court first upheld an affirmative action policy at a public university, the only other "racial classifications upheld under strict scrutiny [have been] race-based remedies for prior racial discrimination by the government " To many commentators "strict scrutiny" has thus come to seem rather more "strict in theory, but fatal in fact" —a point sometimes echoed by the Justices themselves  Strict scrutiny may typically be fatal in fact, but affirmative action policies in higher education have been a notable exception  Partly this has to do with the Equal Protection Clause itself, and the often crucial difference that a particular context makes in deciding cases under that "broad provision[] " And for several Justices the context of affirmative action, involving the arguably "benign" use of race, has seemed particularly distinctive  Yet, despite this contextual difference, the Court has made it clear that its scrutiny of race-conscious admission policies is still every bit as strict  Or, as Justice Kennedy put the point in the first Fisher case, even though "[s]trict scrutiny must not be 'strict in theory, but fatal in fact,'" it must also "not be strict in theory but feeble in fact " This seeming tension—between the strictness of the Court's scrutiny and its approval of race-conscious admissions policies—has led the Court to adjust its framework for scrutinizing similar policies over the years  And since Bakke that framework appears to have shifted in two significant respects, corresponding to each of the two prongs of strict scrutiny  First, the Court now requires public universities that adopt affirmative action admissions policies to explain in increasingly "concrete and precise" terms what diversity-related educational goals those policies serve and why the university has chosen to pursue them  Anything less, the Court has held, would fail to present an interest sufficiently compelling under strict scrutiny  Second, the Court also now expects universities to prove that their policies achieve those "concrete and precise goals" in an appropriately "flexible" way, as most clearly exemplified by the Harvard plan that Justice Powell singled out in Bakke   That model has yielded "five hallmarks" of an appropriately tailored affirmative action policy, criteria that have since guided lower courts in assessing other affirmative action plans  For a university's affirmative action policy to survive strict scrutiny, a university must first "demonstrate with clarity that its 'purpose or interest is both constitutionally permissible and substantial " The Court has recognized only a single interest that meets that standard: "the attainment of a diverse student body " What exactly that interest amounts to—and how, consequently, a university should ensure it has appropriately tailored its policy to achieve that interest—has been a point of uncertainty since Bakke   With its two decisions in Fisher v  University of Texas , however, the Court appears now to require a more "concrete and precise" articulation of the diversity-related educational goals a university hopes to achieve through its affirmative action admissions policy  In addition, the Court also now appears to expect a university to provide a reasoned and principled explanation of why the school believes it important to achieve those goals  The diversity rationale emerged with the Court's first encounter with a voluntary affirmative-action policy, in Bakke   There—in an opinion for the Court joined by no other Justice—Justice Powell explained what interests clearly would not count as compelling enough to satisfy strict scrutiny  Those included the Medical School's alleged interest in having "some specified percentage" of certain racial or ethnic groups in a student body and its interest in "remedying     the effects of societal discrimination," as well as the school's particular interest in "the delivery of health-care services to communities currently underserved " None of these interests, Justice Powell concluded, provided a reason substantial enough to justify turning to race-conscious measures  Nor has the Court said otherwise since  But Justice Powell was also clear about what interest he believed would satisfy strict scrutiny: "student body diversity " And just as importantly, he also explained why: colleges and universities, he suggested, had a uniquely academic interest in promoting an "atmosphere of speculation, experiment, and creation"—an interest, more simply, in "academic freedom " That interest, Justice Powell observed, was not only "essential to the quality of higher education," but had also long "been viewed as a special concern of the First Amendment " Thus the "right to select those students who will contribute the most to the robust exchange of ideas" not only allowed a university "to achieve a goal that is of paramount importance in the fulfillment of its mission," it also represented a "countervailing constitutional interest" that, in Justice Powell's view, called for the Court's respect  In Bakke , Justice Powell set out the basic theory for why diversity could justify an affirmative action policy, at least "in the context of a university's admissions program  But he gave few details about what that interest encompassed  As he saw it, that interest must have its limits: pursuing diversity would not allow a university to resort to racial quotas, for example, nor could the school disregard other "constitutional limitations protecting individual rights " But Justice Powell declined to indicate where those other limitations fell or how they circumscribed the goals a university could permissibly seek in the name of a diverse student body  And because the Bakke Court fractured as it did, with no one opinion commanding a majority of the Justices' votes, the lessons of that case have been hard to discern, especially after the Court appeared to decline a similar diversity rationale in later cases outside higher education  Perhaps unsurprisingly, the lower courts soon came to reflect this uncertain division of opinion in later cases involving affirmative action programs at other public universities  Some clarity over Bakke 's diversity theory came in 2003, with a pair of decisions reviewing affirmative action policies of the University of Michigan: Grutter v  Bollinger , challenging the university's law school admission program, and Gratz v  Bollinger , challenging the policy used by the university's undergraduate program  Grutter , especially, helped clarify what an interest in diversity involved, and how a university could rely on that interest to defend a race-conscious admissions policy  Under the admissions policy of the University of Michigan Law School ( the Law School) challenged in Grutter , applicants to incoming classes were admitted under a policy that weighed a composite of the applicant's LSAT score and undergraduate GPA along with several more individualized factors, including the applicant's race  The Law School set out to create classes with what it called a "critical mass of underrepresented minority students," to ensure that those students felt "encourage[d]     to participate in the classroom and not feel isolated " The school, however, never explicitly assigned a numerical target for any particular racial group, though it did track, on an ongoing basis, "the racial composition of the developing class " A rejected white applicant claimed the Law School's admission policy discriminated against her based on her race, in violation of the Equal Protection Clause and Title VI  And her challenge eventually reached the Supreme Court, alongside its companion case, Gratz , challenging the university's admissions policy for its undergraduate program  Given the uncertainties surrounding Bakke 's bottom line, the first major question in Grutter centered on the basic goal of the Law School's policy: Is achieving student diversity an interest compelling enough to justify a school's use of race at all in its admissions decisions? And for the first time the Supreme Court held that it was  Writing for a clear majority, Justice O'Connor adopted the view Justice Powell set out in Bakke : "student body diversity is a compelling state interest that can justify the use of race in university admissions " More than that, the Court made clear that it was willing to defer to the Law School's understanding of that interest, and its goal of "enroll[ing] a 'critical mass' of minority students '" As Justice O'Connor explained for the Court, by enrolling a "critical mass" of students, the Law School was trying to achieve the "substantial" "educational benefits that diversity is designed to produce"—benefits such as "promot[ing] cross-racial understanding," "break[ing] down racial stereotypes," "promot[ing] learning outcomes," and "better prepar[ing students] as professionals " Achieving a "critical mass" of underrepresented students, the Court agreed, was simply one way that the Law School could try to vindicate those diversity-related educational benefits  And because this interest was deemed compelling enough to satisfy strict scrutiny, the Court was therefore willing to treat the school's use of the "critical mass" target as a permissible proxy for achieving those benefits  Not all the Justices agreed, however, that the university's invocation of "critical mass" made the diversity interest more concrete or compelling  In dissent, Justice Kennedy sided with Chief Justice Rehnquist's view that "the concept of critical mass [was] a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas " That "delusion," according to Justice Kennedy, did not just make the school's appeal to "critical mass" "inconsistent with [the] individual consideration" of applicants  It also, in his view, turned the school's admissions policy into a veiled form of racial balancing  And all four dissenting Justices found that result incompatible with the Equal Protection Clause  Grutter appeared to settle the major question left open by the fractured decision in Bakke : whether achieving student diversity was a compelling enough interest for a public university to justify its consideration of race in its admissions policies  Grutter confirmed not only that the Court still viewed student diversity as a compelling interest, but also that a school could vindicate that interest by seeking to enroll a "critical mass" of underrepresented minorities in its incoming classes  The ruling also effectively swept aside contrary lower court decisions that struck down other state universities' affirmative action policies, including in Texas  In the wake of Grutter , the University of Texas (UT Austin) decided to revisit its applicant review process, eventually choosing to introduce race as one of the factors considered in its admissions policy  Under the revised policy, UT Austin would continue to admit all Texas high school students who graduated in the top ten percent of their class, and fill in the rest of its incoming undergraduate classes using an index score incorporating two assessments: (1) an "Academic Index" (AI) that weighed the applicant's SAT score and academic record; and (2) a "Personal Achievement Index" (PAI) that included a more holistic appraisal of the student's character and, following post- Grutter revisions, also factored in the applicant's race  Abigail Fisher, a white Texas student whose application to UT Austin was rejected under this process, challenged the AI-PAI system  That system, she argued, had discriminated against her as a white applicant by allegedly allowing race to figure in the decision to reject her application, in violation of the Equal Protection Clause  Her challenge eventually made its way to the Supreme Court as Fisher v  University of Texas , where the Supreme Court remanded the challenge to the lower court to review UT Austin's policy under strict scrutiny ( Fis her I ), and then upon appeal upheld the school's admission policy ( Fis her II )  In her suit, Fisher did not challenge Grutter 's basic holding—that the university had a compelling interest in student diversity, or even that the school could pursue that interest in diversity by enrolling a "critical mass" of underrepresented minorities  But when the Court finally took up her challenge on the merits in Fisher II , Justice Kennedy also took the occasion to revisit Grutter 's analysis, offering several "controlling principles" on behalf of the four-Justice majority that would guide its review of UT Austin's race-conscious admissions policy  In Fisher II , as in Fisher I , Justice Kennedy confirmed that Grutter 's bottom line remained good law: "obtaining 'the educational benefits that flow from student body diversity,'" he confirmed, was still an interest compelling enough to satisfy strict scrutiny  But perhaps mindful of his dissent in Grutter , Justice Kennedy also clarified that "asserting an interest in the educational benefits of diversity writ large" would not suffice  That, he explained, would make the "university's goals" too "elusory or amorphous" "to permit judicial scrutiny of the policies adopted to reach them " The Court thus cut two new benchmarks for reviewing a university's asserted interest in resorting to race as a factor in its admissions policy  First, the university had to articulate "precise and concrete goals" that its race-conscious policy served, goals "sufficiently measurable" under "judicial scrutiny " And, second, the university had to provide a "'reasoned, principled explanation' for its decision to pursue those goals"—a sound academic rationale, in other words, for wanting to achieve whatever diversity-related goals it set for itself  In the majority's view, UT Austin's use of race in its admissions decisions measured up to both benchmarks  According to the Court, the first benchmark was straightforwardly met: the goals UT Austin articulated, Justice Kennedy pointed out, effectively "mirror[ed] the 'compelling interest' th[e] Court ha[d] approved in its prior cases " And under Grutter , the majority concluded, those benefits passed constitutional muster  Notably, however, achieving critical mass was not among those Justice Kennedy listed  Nor did Justice Kennedy return to the question he raised in Grutter : whether the "critical mass" concept even has a place among the "concrete and precise goals" that could survive strict scrutiny  But that question was also arguably beside the point in Fisher II   As Justice Kennedy emphasized for the Court, the goals that UT Austin articulated were clearly constitutionally adequate, having come nearly verbatim from the Court's case law  And the university's officials had all offered "the same, consistent 'reasoned, principled explanation'" for pursuing them—meeting the Court's second benchmark  That was apparently enough for the Court to conclude that a compelling interest justified the university's diluted use of race in its holistic review of applications  With Fisher I and II , the Court reiterated that the educational benefits that come with a racially diverse student body count among the few interests compelling enough to survive strict scrutiny  But Fisher I and II also narrowed that interest: seeking student body diversity had to involve objectives more specific than the simple desire for "diversity writ large " Rather, under the Fisher formulation, the university must articulate the "concrete and precise goals" it expects its affirmative action policy to accomplish, along with a "reasoned, principled explanation" of why it has chosen to pursue them  So long as a university does that, it will likely have a strong case, under Fisher I and II , that a compelling interest supports its use of a race-conscious admissions policy  That, however, is only the first of two tests that a policy has to pass under strict scrutiny  The second—probing whether the university has narrowly tailored its policy to achieve those diversity-related benefits—has proved equally critical in the Court's review of affirmative action policies  And once again owing to Justice Powell's opinion in Bakke , the Court appears to have embraced a model of what a narrowly tailored policy looks like: Harvard College's admissions program endorsed in Bakke , now more commonly known as the "Harvard plan " The Harvard plan has also provided the Court with a basis for developing more specific criteria for evaluating other affirmative action policies—what one court has described as the "five hallmarks of a narrowly tailored affirmative action plan " The first affirmative action program to come before the Court—the policy challenged in Bakke at U C  Davis's Medical School—was also the first to falter under the Court's scrutiny  But because the Justices were unable to cobble together a majority there, they also settled on no single rationale for why the Medical School's policy could not survive the Court's scrutiny  This uncertainty left the lower courts without clear guidance on the permissibility of race-conscious admissions policies structured differently than the one struck down in Bakke   In announcing the judgment in Bakke , however, Justice Powell offered a clear reason why, in his view, the Medical School's policy could not survive a challenge under the Equal Protection Clause  The school's 16-seat set-aside for minority students was not "the only effective means of serving [the school's] interest in diversity" —in constitutional parlance, the set-aside was not narrowly tailored  And to explain why not, Justice Powell pointed to the Harvard plan as an example of an appropriately tailored affirmative action policy  That plan, according to Justice Powell, had several significant features that distinguished it—favorably—from the set-aside struck down in Bakk e : In [Harvard's] admissions program, race or ethnic background [is] deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats  The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism  Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important     [And] the weight attributed to a particular quality may vary from year to year depending upon the 'mix' both of the student body and the applicants for the incoming class  Unlike this "flexible" system of review, the Medical School policy at issue in Bakke was rigid: reserving a predetermined number of seats for a "selected ethnic group " In Justice Powell's view, that technique effectively precluded a more holistic review, that "treats each applicant as an individual " "[R]ace or ethnic origin," as he saw it, did not serve as "a single though important element" of an applicant's file in the Medical School's policy; it had instead become a factor that "foreclosed" other applicants "from all consideration for [certain] seat[s] simply because [they were] not the right color or had the wrong surname " A program like that, Justice Powell concluded, could not be narrowly tailored—precisely because another more individualized and "holistic" model, like Harvard's, could serve instead  Even if Bakke suggested that the Court's scrutiny of a race-conscious admissions policy would be every bit as strict as for other racial classifications, later cases have made clear that such scrutiny need not always be fatal  The companion cases of Grutter v  Bollinger and Gratz v  Bollinger offer clear examples: each involved affirmative action admissions policies at the University of Michigan, and each yielded a different bottom line, with the Court upholding the Law School's policy in Grutter while striking down the university's undergraduate admissions policy in Gratz   But those diverging results appeared to proceed from a common starting point: how closely the challenged admissions policy resembled the Harvard plan  In the case of the Law School's admissions policy, the Court found the resemblance quite close  As Justice O'Connor explained for the Court in Grutter , "the Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment " It therefore did not award "mechanical, predetermined diversity 'bonuses' based on race or ethnicity " And "[l]ike the Harvard Plan, the Law School's admissions policy" accorded each applicant the same sort of flexible consideration that Justice Powell had called for in Bakke   That "policy st[ood] in sharp contrast," however, with the way the Court viewed the university's undergraduate admissions policy in Gratz   Under the undergraduate policy, admissions officers automatically awarded "20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race " As Chief Justice Rehnquist explained for the Court, that policy therefore violated a basic feature of "[t]he admission program Justice Powell described" in Bakke —a program that "did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity " The result was a policy that did not "offer applicants the individualized selection process described in Harvard's example," and that could consequently not pass strict scrutiny  On that point Justice O'Connor also agreed  As she explained in supplying her decisive fifth vote, the undergraduate policy simply did not "enable[] admissions officers to make nuanced judgments with respect to the contributions each applicant is likely to make to the diversity of the incoming class," unlike the Law School's more holistic policy  This was true even though the undergraduate policy "assign[ed] 20 points to some 'soft' variables other than race," such as "leadership and service, personal achievement, and geographic diversity " None of that, in Justice O'Connor's view, could counteract the more problematic effect of those factors' being "capped at much lower levels," so that "even the most outstanding national high school leader could never receive more than five points for his or her accomplishments—a mere quarter of the points automatically assigned to an underrepresented minority solely based on the fact of his or her race " That weighting, though not problematic in all cases, had all but ensured there "that the diversity contributions of applicants [could not] be individually assessed " A thumb pressed that heavily on the racial scale, Justice O'Connor concluded, came too close to the "nonindividualized, mechanical" balancing condemned by Bakke to survive strict scrutiny  Despite their contrasting results, Gratz and Grutter gestured at several basic criteria by which to assess a university's race-conscious admissions policy  Those criteria, as the U S  Court of Appeals for the Ninth Circuit later described them, could be summed up in "five hallmarks of a narrowly tailored affirmative action plan " And all five can be traced in one way or another to Justice Powell's analysis of the Harvard plan  1  No Quotas  Perhaps the clearest violation of the requirement that a policy be narrowly tailored is the use of racial quotas  As Justice O'Connor explained in Grutter , a "'quota' is a program in which a certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups," consequently "insulat[ing] the individual [applicant] from comparison with all other candidates for the available seats " And as Justice Powell emphasized in Bakke , and as has been consistently reaffirmed by the Court since, "[t]o be narrowly tailored, a race-conscious admissions program cannot use a quota system " This ban on quotas therefore precludes the use of a rigid set-aside like the one challenged in Bakke   And it likewise rules out the sort of "mechanical," automatic points system that was once in place at the University of Michigan's undergraduate college and was later invalidated in Gratz   2  Individualized Consideration  The flip side of the Court's refusal to accept racial quotas has been its insistence on individualizing the consideration of applicants  As Justice Kennedy reaffirmed in Fisher I , echoing Justice Powell's description of the Harvard plan in Bakke , an appropriately tailored program "must 'remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application '" And as the Court suggested in Gratz and Grutter , an acceptable plan will therefore engage in a "highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment " Such review allows "the use of race as one of many 'plus factors' in an admissions program," like in the University of Michigan Law School's policy upheld in Grutter   It also appears to bar a school from "automatically award[ing] points to applicants from certain racial minorities" as an effectively decisive factor, as it became under the university's undergraduate policy  3  Serious, Good-Faith Consideration of Race-Neutral or More Flexible Alternatives  Neither of these two criteria, however, implies that a university must exhaust "every conceivable race-neutral alternative" before turning to a race-conscious policy  Instead, a university need only provide evidence that it undertook "serious, good faith consideration of workable race-neutral alternatives" before resorting to its choice of a race-conscious plan, but that those alternatives either did not suffice to meet its approved educational goals or would have required some sacrifice of its "reputation for academic excellence " The same holds true, moreover, of more flexible race-conscious alternatives  Thus Justice Powell explained in Bakke that the Medical School's program was not narrowly tailored when the school could have adopted the more individualized, holistic program then in use at Harvard, an option the Medical School apparently did not consider  4  No Undue Harm  Even though the Court has allowed the use of race-conscious admissions policies under the exacting standard of strict scrutiny, it has also long "acknowledge[d] that 'there are serious problems of justice connected with the idea of preference itself '" In Grutter , Justice O'Connor drew another corollary from that apparent discomfort with racial preferences  "[A] race-conscious admissions program," she explained, must "not unduly harm members of any racial group " What this corollary means more specifically remains unclear; so far it has received only passing attention from the Court  At the least, Justice O'Connor suggested, a race-conscious admissions policy must not "unduly burden individuals who are not members of the favored racial and ethnic groups " And in Grutter , Justice O'Connor put more flesh on that analysis: an affirmative action policy that closely resembled the Harvard plan, she suggested, would not "unduly harm" other applicants  It remains to be seen, however, whether this principle might take on new life in the Court's review of other plans  5  Ongoing Review  In Grutter , Justice O'Connor also drew a fifth and final corollary from the basic premise that the Fourteenth Amendment was meant "to do away with all governmentally imposed discrimination based on race " "[R]ace-conscious admissions policies," she concluded, "must be limited in time " This requirement, Justice O'Connor explained for the Court, reflected a consideration apparently unique to racial classifications: "however compelling their goals, [they] are potentially so dangerous that they may be employed no more broadly than the interest demands " Doctrinally, this meant there could be no "permanent justification" for race-conscious admissions policies in higher education; sooner or later they had to end, as the university conceded in its briefing  Practically, this "logical end point" could come in one of several ways  It could take the form of an explicit "durational limit," such as a sunset provision  Or it could arrive as a result of "periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity " But, however a university chooses to pursue that end, it has an "ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies" and the role race plays in them, or whether it should continue to play one at all  For several Justices this ongoing obligation of review also pointed to something more definite—an expiration date, when "the use of racial preferences will no longer be necessary to further [the school's] interest" in student body diversity  Looking back over the quarter-century since Bakke , Justice O'Connor "expect[ed]" that day to come twenty-five years after casting her deciding votes in Gratz and Grutter —ten years from this writing  What exactly this meant, as either a practical or doctrinal matter, also remains unclear  Indeed, even then several of her fellow Justices seemed less sure, or simply unsure, what to make of that unusually specific constitutional deadline  But with six Justices having since departed the Court, Justices O'Connor and Kennedy included, it remains to be seen whether in the next ten years race-conscious admissions policies will reach this foreordained "logical end point " What seems clear for now, however, is that the Harvard plan described in Bakke remains the Court's working model of a constitutionally satisfactory race-conscious admissions policy  And that, as the Court has consistently said since, is a policy capable of achieving the diversity "essential" to the life of a modern university, while still "treat[ing] each applicant as an individual " Race has come to play two major doctrinal roles in higher education today, mirroring the two senses of "affirmative action" discussed in this report: the mandatory role, rooted in the affirmative obligation states have to eliminate the vestiges of de jure segregation, and the voluntary role, particularly in admissions decisions at selective colleges and universities  In the context of higher education, the Court has so far considered these two forms of "affirmative action" only in relation to public universities, and then primarily as a matter of constitutional law, under the Fourteenth Amendment's Equal Protection Clause  But many of those cases have also involved claims brought under Title VI of the Civil Rights Act of 1964 (Title VI or the Act)  And while the Court has read Title VI's protections to overlap with the Equal Protection Clause, Congress still has a significant say over the substantive scope of Title VI as well as its enforcement  Title VI generally protects participants in federally funded "program[s] or activit[ies]" from discrimination based on their "race, color, or national origin " To ensure that statutory right, the Act grants all federal funding agencies the authority to issue implementing regulations, and the power to enforce the regulations they issue  In practice, much of the interpretive authority falls to the U S  Department of Justice (DOJ), and for educational programs, the U S  Department of Education (ED)  Both DOJ and ED have also established their own processes for receiving and investigating complaints of suspected Title VI violations  ED, meanwhile, has also issued its own set of rules to govern the federal education dollars it disburses each year, reaching some 4,700 colleges and universities  Every agency that awards federal funds—ED included—has the authority not just to issue implementing regulations but to enforce those rules against noncompliant recipients, including through an investigation that may, upon a finding of noncompliance, result in the termination, suspension, or refusal to grant federal funds  Thus, for example, where ED finds a school in violation of Title VI or its implementing regulations the department may seek to cut off federal funding through an "administrative fund termination proceeding," as it has in at least some cases  And since the passage of the Civil Rights Restoration Act of 1987, the courts have read the scope of liability under Title VI broadly  With respect to the termination of funds, a Title VI violation in one program at a college or university could therefore jeopardize funding for the institution as a whole  Withdrawing funds may be the ultimate means of enforcing Title VI, but it is far from exclusive  DOJ, for its part, has also sought to achieve compliance through the federal courts, intervening in some private suits alleging Title VI violations and otherwise representing executive branch agencies, such as ED, in lawsuits seeking enforcement of Title VI  DOJ has participated in cases challenging practices of formerly de jure segregated public university systems as well as in settlements resolving such Fordice -related claims  DOJ has also taken a position in cases challenging affirmative action admissions policies, most recently in the ongoing litigation surrounding Harvard College's admissions policies  ED has ventured into this area as well, having recently opened investigations into the admissions decisions at several prominent private universities  Congress continues to have considerable say over how Title VI works—at least within the parameters of the Supreme Court's equal protection jurisprudence  Perhaps the most direct way of doing so is by amendment  As a general matter, Congress could revise Title VI in one of two directions, to make the statute either (1) more restrictive than the Court's current Equal Protection jurisprudence or (2) expressly permissive of race-conscious measures that the Court has upheld or has thus far not addressed  In the more restrictive direction, Congress could prohibit recipients of federal funds from using voluntary race-conscious measures at all—a result that four Justices in Bakke argued Title VI already requires, but which the Court has so far not embraced  A statutory revision of that kind would also implicitly reject the Harvard Plan discussed in Bakke , by excluding race as a permissible factor in admissions decisions at the many universities subject to Title VI, including the many private universities that receive federal funds  And, consequently, an amendment along these lines would make unlawful the type of admissions policies that the Court has approved under the Equal Protection Clause, like those at issue in Grutter and Fisher II   On the other hand, Congress could expressly open other avenues for effectuating Title VI's antidiscrimination mandate  This could include incorporating a private right of action to bring suit under Title VI, which, at present, is an implied right with no statutorily defined remedies  More consequentially, Congress could also amend Title VI to provide for disparate impact liability—that is, a Title VI violation based on a funding recipient's use of certain policies or practices that disproportionately and negatively impact members of a protected class, as already exists under Title VII of the same Act  A provision addressing disparate impact liability—either its availability or foreclosure under Title VI—would resolve a significant and ongoing debate on the issue  Such an addition would also be one way of clarifying whether Congress does in fact intend for Title VI to be read coextensively with the Equal Protection Clause  Beyond legislative amendments, Congress also exercises oversight over the agencies charged with carrying out Title VI's antidiscrimination mandate  As discussed earlier, DOJ and ED are primarily responsible for enforcing Title VI in educational programs  For its part, ED investigates and seeks compliance through its Office for Civil Rights, while the Educational Opportunities Section of the Department of Justice's (DOJ's) Civil Rights Division typically enforces Title VI in educational programs for the department  Both offices maintain public archives documenting their past and current investigations, as well as wider-ranging reports detailing their enforcement priorities and investigatory procedures  And because Title VI applies to a wide variety of entities that receive federal financial assistance, not just colleges and universities, DOJ also publishes news and updates on Title VI enforcement activity in other programmatic areas, from agencies across the federal government  Race has come to play two major doctrinal roles in higher education today, reflecting the two senses of "affirmative action" discussed in this report  "Affirmative action" in its original sense grew out of the affirmative obligation imposed on the states by the Equal Protection Clause to eliminate the vestiges of de jure segregation from their public schools  And in that sense, "affirmative action" involves the mandatory use of race-conscious measures in higher education to right the enduring wrongs of state-sanctioned segregation  But "affirmative action" has also come to refer to race-conscious policies outside this de jure context—policies voluntarily adopted by institutions to help racial minorities overcome the effects of their earlier exclusion  In higher education, none has been more salient—or stirred more debate—than the race-conscious admissions policies that colleges and universities across the country have used to diversify their student bodies  Thus far, remedial measures addressing de jure segregation, and voluntary measures designed to promote student-body diversity, have been the only race-conscious measures that the Court has approved under the Equal Protection Clause  And both remain areas of active litigation and administrative enforcement  Over the years, however, the Court has made it clear that it will subject voluntary "affirmative action" policies to especially close scrutiny, approving them only when they can be shown to be narrowly tailored to serve compelling educational goals  It has approved such polices twice already, most recently in 2016  Still, several Justices have suggested that the rationales supporting these voluntary race-conscious measures will one day run out  But for the time being, at least, these two lines of authority nevertheless provide a place for affirmative action in higher education today  This authority, however, leaves questions as of yet unexplored  It appears to be an open question, for example, whether a public institution of higher education can cite its own history of intentional exclusion, or else its "past discrimination," as a basis for adopting a race-conscious admissions policy, among other measures  Whether—and how—the courts might assess such untested arguments would likely turn on a range of factors, including the further development of the two lines of authority addressed in this report  Regardless of those and other possible developments, however, Congress still has a significant say in in this area, through its authority not just to revise Title VI but to oversee the Act's enforcement 


Report 2:  FRA and FTA’s approaches to their rail safety oversight missions each have strengths and limitations, including how the agencies develop safety regulations, conduct inspections, and carry out enforcement  Compared to FRA’s long-standing role in providing safety oversight over railroads, FTA is in the process of implementing significant changes to its program for rail transit safety oversight after being granted new authorities in MAP- 21 and the FAST Act  With respect to regulations, FRA’s extensive and well-established safety regulations are a strength  FTA has made some progress toward developing appropriate safety regulations, such as identifying subjects for potential regulatory action  With respect to inspections, FRA’s use of a risk-based approach to distributing inspection resources is a strength  FTA has sought to address previously identified deficiencies in state safety oversight by recommending that state safety agencies develop risk-based inspection programs  FTA, though, has not provided states guidance for these efforts  With respect to enforcement, FRA’s use of its enforcement authorities is a strength  FTA is also implementing new statutory requirements that state safety agencies have enforcement authorities but does not have a process or methodology to evaluate the effectiveness of these enforcement practices  Extensive and well-established safety regulations are a strength of FRA’s safety oversight program based on studies we reviewed and discussions with rail operators and stakeholder organizations  According to NTSB, FRA’s railroad safety regulations are an important and effective part of its oversight program  Our previous work reported that according to stakeholders, the Railroad Safety Advisory Committee provides a collaborative environment where stakeholders in the rail community work with FRA to identify issues and proposals for safety standards and regulations that improved the quality of railroads’ safety initiatives and fostered a greater level of compliance with safety regulations  This is consistent with views of stakeholders we spoke with, who characterized FRA’s safety regulations as a strength  An industry association told us that FRA’s regulations promote safety by helping to ensure that no operator falls below a minimum threshold for safe operations, while a rail operator told us that federal regulations help to standardize the operating environment and prevent a patchwork of various state regulations  Four stakeholders also characterized the Railroad Safety Advisory Committee, which plays a large role in crafting FRA’s railroad safety regulations, as effective and inclusive  However, based on studies we reviewed and discussions with rail operators’ and stakeholders’ organizations, FRA faces limitations in its efforts to regulate safety across railroad systems that differ from one another and sometimes change more quickly than the federal regulatory process  Five railroad operators and an industry association told us that some of FRA’s safety regulations do not account for differences in railroads or innovation in safety practices, with three railroad operators stating that this approach requires the extensive use of waivers for particular regulations  Further, two railroad operators and a rail transit operator we spoke with stated that additional federal regulations are needed to provide minimum baseline requirements in specific areas of railroad safety such as medical fitness for duty  In 2014, NTSB also found that FRA needs to do more to regulate particular safety issues including medical fitness for duty and signal protection  FRA officials acknowledged that time and resources are two of the primary challenges that the agency faces when developing safety regulations but also noted additional ways in which the agency can require railroads to adopt safety practices  FRA officials described the process of creating or significantly amending a regulation as involving years of work, even before the agency commences with the process of drafting a rule  The officials also noted that the agency has additional tools to compel railroads to adopt safety practices  For example, FRA officials discussed the use of compliance agreements, in which railroads can have fines reduced in exchange for adopting safety measures that go beyond what FRA regulations require  FRA officials are considering the use of performance-based regulations as they update their safety regulations  As noted above, FRA’s proposed regulations regarding passenger equipment safety incorporates performance -based safety requirements, rather than explicit safety targets or tolerances  FRA has promulgated performance-based regulations about the implementation of positive train control, a communications-based system designed to prevent certain types of train accidents, as well as system safety programs that set general safety parameters and thresholds by which successful performance is governed  FRA’s consideration of performance-based regulations is in line with federal guidance  OMB’s Circular A-4 states that performance standards “are generally superior to engineering or design standards because performance standards give the regulated parties the flexibility to achieve regulatory objectives in the most cost-effective way ” Additionally, under Executive Order 12866, agencies should (to the extent permitted by law and where applicable) identify and assess alternative forms of regulation and specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt  However, as the language of OMB’s Circular A-4 and Executive Order 12866 suggest that performance-based regulations are not always feasible, studies of performance-based regulations find that as with any other form of regulation, performance-based standards have trade-offs  FRA officials told us that under certain circumstances, performance- based regulations are appropriate for issues regarding design, maintenance, operation, and technology-driven safety requirements  FRA officials we spoke with did not think performance-based standards are appropriate for areas that require standardization  One example is track safety standards, where the need for different operators to use the same equipment precludes a performance-based approach that allows railroads to meet requirements through different means  FRA officials added that a key aspect of the success of performance-based regulations concerns how railroads demonstrate compliance  This concern is consistent with other studies of performance-based regulations, which find that these regulations are most appropriate when regulators have capacity to measure and monitor performance  Though FTA has made progress assessing the state of rail transit safety standards, a limitation of FTA’s rail transit safety oversight program is the lack of federal rail transit safety regulations, which may contribute to inconsistent safety practices across the rail transit industry, according to studies we reviewed and discussions with rail operators and stakeholder organizations  NTSB reported that the structure of FTA’s oversight process leads to inconsistent practices, inadequate standards, and marginal effectiveness  In addition, a 2016 DOT OIG report found that because FTA’s safety standards are voluntary, they are unenforceable  In 2012, FTA gained the authority to issue safety regulations, though it has not done so yet, and NTSB and other stakeholders we spoke with indicated that the lack of such federal safety regulations is a weakness in federal rail transit safety oversight  Despite differences across rail transit systems, there is value in establishing federal rail transit safety regulations, according to stakeholders from all categories of those we interviewed, including a state safety agency, three rail transit operators, a railroad operator, and two industry associations  Some stakeholders identified specific areas that would benefit from federal rail transit regulations  For example, two rail transit agencies called for federal regulations to address operator fatigue  Some of these officials stated that federal rail transit safety regulations could help ensure safety by establishing clear and consistent minimum standards  Officials from a rail transit entity and an industry association stated that voluntary standards are not enough to ensure that transit entities will adopt appropriate safety measures  According to our analysis, a past study, and stakeholders we spoke with, FTA’s ability to develop and implement performance-based regulations is limited by its lack of capacity to collect and analyze rail safety performance data  In 2017, DOT OIG found that data limitations of FTA’s National Transit Database results in limited safety performance criteria in FTA’s National Public Transportation Safety Plan  Further, two rail transit entities as well as a state safety agency we spoke with stated that they face challenges in analyzing data due to either the size of their systems or their capacity  FTA officials told us that they need more data to inform their decisions regarding whether to establish rail transit safety regulations, and also added that a limitation to their ongoing assessment of potential areas for rail transit safety regulation is the concern about public disclosure of safety data provided to FTA and its potential use in private litigation  According to FTA officials, they need more information to do a comprehensive evaluation of efficacy of current safety standards and practices  As required by the FAST Act, FTA has entered into an agreement with the National Academies of Sciences, Engineering, and Medicine, to conduct a study to evaluate whether it is in the public interest to withhold from federal or state court proceedings any information collected by DOT through its public transportation safety program oversight activities  The National Academies of Sciences is expected to complete this study in 2018  FTA is taking positive steps toward developing safety regulations that may address inconsistent safety practices across rail transit operators  FTA officials stated that the agency is considering issuing rail transit safety regulations and also employs additional tools to compel rail transit entities to adopt safety measures  As noted above, FTA is currently studying whether federal regulations are appropriate for specific areas of rail transit safety  Executive Order 12866 and OMB’s Circular A-4 direct federal agencies to consider performance-based regulations when developing regulations  Further, as the Transportation Research Board recently reported, any decision to use performance-based regulations “must take into account the regulator’s own ability to enforce and motivate compliance (through methods such as auditing and field inspections) as well as the capacity of regulated entities to meet their obligations ” FTA officials noted that they are actively engaged with members of the Transportation Research Board in reviewing and discussing these recent findings related to safety regulations for high-hazards industries  In January 2017, FTA issued its National Public Transportation Safety Plan, which FTA officials noted is one component of their transit safety standard development program  According to FTA officials, the plan identifies a list of issue areas that the agency is currently studying to determine whether national regulations are needed  FTA officials also stated that the plan includes “voluntary standards,” which are intended to put the industry “on notice” that federal safety regulations may be proposed in those areas  FTA officials stated that they view the National Public Transportation Safety Plan as iterative and more easily updated compared with official regulations  Additional tools that FTA officials stated the agency employs in its approach to safety oversight include general directives as well as the requirements associated with FTA grants  Based on our assessment and studies we reviewed, a strength of FRA’s safety oversight program is its risk-based approach to distributing inspection resources, which may serve as an example for FTA and state safety agencies  According to NTSB, FRA’s qualified inspectors are a strength of its oversight program  To help target these inspectors to the areas of highest risk, FRA developed the National Inspection Plan, which includes a quantitative model for allocating inspection resources in a way that tries to minimize railroad accidents  This model utilizes data including: (1) accident and incident data that railroads are required to report, (2) data from FRA inspection activity, and (3) information on railroad activities such as train miles and other data  Based on our assessment of FRA’s model, we believe that it can be an appropriate and useful tool for directing its inspection resources based on risk because it relies on statistical methods commonly used to predict the risk of a violation for regulated entities  While we did not review FRA’s entire modeling process, nor did we validate the results it generates, we do believe that FRA’s approach to using these statistical models as a key part of its inspection program is appropriate  However, a potential limitation of FRA’s inspection program is the flexibility granted to individual inspectors and whether the manner and extent to which inspectors implement this discretion may be inconsistent with the risk-based National Inspection Plan  FRA’s National Inspection Plan provides guidance for inspectors about how much time they should spend inspecting individual railroads  According to FRA officials, FRA inspectors have considerable flexibility to deviate from the National Inspection Plan based on their judgment regarding where to more effectively use their resources  FRA officials stated that situations arise that call for deviations in planned inspections  For example, a particular railroad may experience a serious accident and therefore require more oversight from FRA  According to FRA officials, regional offices make these decisions based on their understanding of emerging issues  Inspectors are expected to know their region and decide which locations to go to, and are in part evaluated based on these decisions  When a region’s record of total inspection time spent on a particular railroad differs from the National Inspection Plan by more than 5 percent, the region’s leadership submits an explanation to FRA’s Office of Railroad Safety  This practice, if not monitored, could allow inspectors to deviate from the data-driven model results in ways that undermine the goal of the National Inspection Plan to deploy FRA’s limited resources efficiently and based on risk  However, FRA officials told us that flexibility for individual inspectors is important, and that FRA is continuously monitoring the model’s performance and making changes as appropriate  Further, OECD’s Best Practice Principles for Regulatory Policy note that it is important to ensure “that sufficient flexibility is left to enforcement and inspection officials to adapt their response in proportion to the facts on the ground ” A strength of FTA’s approach to rail transit safety oversight is that it is working to overcome weaknesses in state oversight of rail transit identified in our prior work and stakeholders we spoke with  For example, FTA has noted that in the past some state safety agencies lacked sufficient oversight authorities  To now be certified by FTA, state safety agencies must demonstrate that they have authority to review, approve and oversee the implementation of rail transit operator’s safety plans  Additionally, we have found, and FTA has also noted, that some state safety agencies would benefit from more training and additional staff  To now be certified by FTA, state safety agencies must be capable of directly hiring and developing staff and contract support, as well as have a training plan for certain staff  Though FTA is seeking to implement stronger safety oversight activities, a limitation of its program is that state safety agencies have not received the guidance and support necessary to develop effective inspection programs  FTA does not currently plan to conduct widespread inspections itself and recommends that state safety agencies develop risk-based inspection programs  According to FTA, states have discretion to establish their inspection programs in accordance with their program standards, and are not required to actually conduct inspections as the method of verifying rail transit operators’ compliance with safety rules  However, direct observation, audits, and performance indicator tracking are useful methods for an oversight agency in assessing a regulated entity’s safety culture  Officials we spoke with from selected state safety agencies say that they have received little guidance from FTA on what their risk-based inspection programs should look like  In the materials FTA provided to states, it said that it intends to provide guidance to states on risk-based inspections but did not provide us with a plan or timeline for doing so  Without guidance from FTA, state safety agencies may not develop effective risk-based inspection programs and thus not use their resources efficiently  Effective risk-based inspection programs are particularly important given state safety agencies’ limited resources  We have reported in the past that some state safety agencies lack sufficient resources, including training and staff  Officials from two rail transit operators and all four industry associations we spoke with stated that state safety agencies continue to have limited resources and capacity  Several state safety agencies we spoke with rely on contractors or employees with other responsibilities besides oversight of rail transit to meet their increased oversight responsibilities and achieve certification from FTA  Federal standards for internal control as well as leading practices for regulatory inspections state that agency objectives, including those related to inspections and enforcement, should be clearly communicated  Specifically, federal standards for internal control require that management communicate the necessary quality information to achieve the agency’s objectives  Additionally, the OECD’s Best Practice Principles for Regulatory Policy recommends that governments ensure clarity of rules and processes for enforcement and inspections and clearly articulate rights and obligations of officials  According to OECD, the frequency of inspections and the resources employed should be proportional to the level of risk  A strength of FRA’s safety oversight program is that the agency has and utilizes clear enforcement authority, according to NTSB and stakeholders we spoke with  As previously discussed, FRA has several enforcement tools available when inspectors find that railroads are noncompliant with applicable regulations, including civil penalties, individual liability, compliance orders, and emergency orders  According to NTSB, this array of specific enforcement tools helps ensure safety deficiencies are addressed by railroads  FRA officials also told us that the process of adjudicating civil penalties provides a forum for FRA and railroad officials to meet to discuss safety issues  Four rail operators also told us that FRA’s authority to issue civil penalties is necessary to ensure railroads’ compliance with regulations  However, a potential limitation of FRA’s approach to enforcement is that it is difficult to quantify the effectiveness of FRA’s civil penalties  FRA has reported that it cannot determine whether observable safety improvements are directly attributable to discrete civil penalties or whether the amount of civil penalties has any effect on safety  We have reported in the past about the challenges of determining the effect of penalties on compliance in tax policy, though we also noted that, despite these challenges, some analyses likely would be useful for better understanding the effect of penalties on compliance  FRA also reported, though, that according to the judgments of its inspectors, issuing civil penalties yields observable improvements in safety practices and compliance with the law  Further, according to FRA, though it does not quantify the impact of civil penalties, FRA monitors railroad responses to its enforcement activity and adjusts its oversight as necessary  More broadly, civil penalties are not meant, by themselves, to ensure railroad safety  Instead, FRA reported that it uses its entire regulatory regime as a whole to try and ensure safety  FRA officials also noted that the agency has additional tools, apart from civil penalties, to compel railroads to adopt safety practices  A strength of FTA’s rail transit safety oversight is that it seeks to improve historically weak state safety agency enforcement authorities, as described in our previous report as well stakeholders we spoke with  FTA requires state safety agencies to adopt enforcement authorities that are sufficient to enable states to compel action from rail transit agencies to address identified deficiencies  FTA has also communicated to states that it is focusing its evaluation of each state’s enforcement authorities in two major areas: ensuring that the state can carry out its primary responsibility for rail transit safety in response to (1) an imminent threat to public safety on the rail transit system and (2) a lack of action or non- compliance from the rail transit operator in carrying out certain safety plans  FTA has provided states with examples of the enforcement authorities and policies state safety agencies could establish to address these specific concerns  Authorities to address imminent safety threats may include the authority to suspend rail transit agencies’ operations, inspect and remove deficient equipment or system infrastructure from service, or issue an order requiring the rail transit agency to correct an unsafe condition prior to placing equipment or infrastructure back into passenger service  FTA has also provided state safety agencies with examples of authorities to address a lack of action or cooperation by the rail transit operator, including the authority to withhold or redirect funds, levy civil or criminal fines or penalties, and a formal citation or ticketing program  Though federal law requires that state safety agencies have enforcement authorities over the safety of the rail transit entities they oversee, a limitation of FTA’s approach is that FTA has not developed a method to evaluate the effectiveness of states’ enforcement practices  Certified state safety agencies will be evaluated for continued compliance with FTA regulations every 3 years  This triennial review process (for rail transit safety) seeks to ensure that states are effectively carrying out their responsibilities  While FTA officials told us that they will evaluate state safety agencies’ enforcement during the triennial reviews, FTA has not developed a process or methodology to evaluate whether state enforcement authorities and practices as a whole are effective  Without a method for determining the effectiveness of state safety agencies’ enforcement, FTA may not have the information needed to identify ineffective safety enforcement  As a result, deficiencies may remain for long periods of time, potentially contributing to safety incidents  Federal standards for internal control maintain that agency managers should perform a range of practices that would facilitate the establishment of a system to monitor the effectiveness of agency activities, which in the context of FTA’s mission includes the effectiveness of its rail transit safety oversight  Agency managers should define objectives clearly to enable the identification of risks, establish activities to monitor performance measures and indicators, and externally communicate the necessary quality information to achieve the entity’s objectives  Internal control standards further stipulate that agency managers should perform monitoring activities regarding their internal control system and evaluate the results  To do so, federal standards for internal control state that agency managers should monitor ongoing operations and effectiveness, evaluate the results of this monitoring, and identify any changes that need to be made to achieve improvement in agency operations  The effectiveness of state safety agency enforcement is especially important because questions have been raised about the efficacy of FTA’s own enforcement mechanisms, including its ability to withhold funds from and assume direct control over safety oversight for a rail transit entity  Rail transit operators and industry association representatives we spoke with stated that FTA’s authority to withhold funding from states is overly punitive, and two stakeholders said the FTA needs more precise tools  Officials from an industry association added that withholding funds can be counterproductive, as most state safety agencies are already underfunded and understaffed  FTA officials pointed to examples in which the agency successfully supported state safety agencies in compelling action from rail transit agencies as evidence that the state safety oversight model, in which FTA backs up state safety agencies, is effective  Additionally, officials from numerous state safety agencies and others questioned whether FTA has the capacity to effectively assume direct safety oversight of rail transit operators  FTA has not assumed direct safety oversight of any rail transit operators outside of WMATA, and FTA officials noted that they intend to continue supporting state safety agencies in their oversight wherever possible  The approaches to rail safety oversight utilized by FRA and FTA each have strengths and limitations  However, FTA’s program is currently in transition as the agency implements new authorities and responsibilities provided in federal law  Though FTA has made progress by evaluating existing rail transit safety standards and providing some guidance to states as part of the certification process, limitations in FTA’s approach may still hinder the success of the state-based rail transit safety oversight program  Given the looming 2019 deadline for state safety oversight programs to achieve FTA certification, FTA can improve its efforts to implement its new rail transit safety oversight program  In particular, without guidance from FTA on how to develop and carry out risk-based inspection programs, state safety agencies may not use limited resources efficiently, risking that important safety issues will go undetected  Further, without a method for how it will monitor the effectiveness of states safety agencies’ enforcement, FTA will lack the information needed to identify ineffective state enforcement, which risks allowing safety deficiencies to remain for long periods of time  By providing this additional guidance and direction to the state safety agencies, FTA would help ensure that states are able to effectively identify and resolve rail transit safety issues  We are making the following two recommendations to FTA: The Office of Transit Safety and Oversight should create a plan, with a timeline, for developing guidance for state safety agencies about how to develop and implement a risk-based inspection program  (Recommendation 1) The Office of Transit Safety and Oversight should develop and communicate a method for how it will monitor the effectiveness of the enforcement authorities and practices of state safety agencies  (Recommendation 2) We provided a draft copy of this report to DOT, NTSB, and WMATA for review and comment  In written comments, reproduced in appendix I, DOT agreed with both our recommendations  DOT also provided technical comments, which we incorporated as appropriate  In e-mails, NTSB and WMATA provided technical comments, which we incorporated as appropriate  NTSB noted that we do not discuss the role of system safety initiatives, such as safety management systems, in the FRA and FTA rail safety oversight programs  We agree with NTSB that system safety concepts are increasingly influencing the FRA and FTA approaches to rail safety oversight but, as NTSB also noted, both FRA and FTA lack finalized regulations codifying their approaches to system safety initiatives  Because the extent of rail entities’ implementation of these initiatives varies and is not complete we did not include an assessment of the strengths and limitations of those initiatives in our scope  As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date  At that time, we will send copies to the Secretary of Transportation, Chairman of NTSB, General Manager of WMATA, and the appropriate congressional committees  In addition, the report will be available at no charge on GAO’s website at http://www gao gov  If you or your staff have any questions about this report, please contact me at (202) 512-2834 or goldsteinm@gao gov  Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report  Individuals who made key contributions to this report are listed in appendix II  In addition to the contact named above, Steve Cohen (Assistant Director); Kyle Browning (Analyst in Charge); Melissa Bodeau; Lacey Coppage; Serena Lo; Sean Miskell; and Josh Ormond made key contributions to this report 

ground_truth: In 2012 and 2015, DOT was provided with additional authority to oversee the safety of rail transit. Within DOT, FTA is now implementing this authority. The DOT's Office of Inspector General has reported, though, that FTA faces challenges in carrying out its enhanced safety oversight. FRA, also in DOT, has long carried out safety oversight of freight, intercity passenger, and commuter railroads. GAO was asked to review various rail safety and oversight issues, including the differences between FRA's and FTA's rail safety oversight programs. This report examines (1) key characteristics of FRA's and FTA's rail safety oversight programs and (2) strengths and limitations of FRA's and FTA's rail safety oversight programs. GAO assessed FRA's and FTA's information about rail safety oversight activities against guidance from the Office of Management and Budget, leading practices developed by the transit industry, and federal standards for internal control. GAO also interviewed stakeholders, including rail operators chosen based on mode, size, and location. The Department of Transportation's (DOT) Federal Railroad Administration (FRA) and Federal Transit Administration (FTA) carry out different approaches to rail safety oversight. FRA has a more centralized safety oversight program for railroads, while FTA's program for oversight of rail transit safety largely relies on state safety agencies to monitor and enforce rail transit safety, as established in federal statute. Key characteristics of both programs include: (1) safety regulations, (2) inspections and other oversight activities, and (3) enforcement mechanisms to ensure that safety deficiencies are addressed (see figure). There are strengths and limitations to FRA's and FTA's approaches to their safety oversight missions, including how the two agencies develop safety regulations, conduct inspections, and carry out enforcement. The National Transportation Safety Board has reported, and stakeholders GAO spoke with generally agreed, that strengths of FRA's rail safety oversight program include its safety regulations, its risk-based inspection program, and its enforcement authorities. FRA also has potential limitations in its oversight framework, though, such as difficulty evaluating the effectiveness of its enforcement mechanisms. FTA has made some progress implementing changes to the rail transit safety program. However, FTA has not provided all the necessary guidance and support to states' safety agencies to ensure they develop appropriate and effective rail transit safety inspection programs. In particular, FTA has not provided states with guidance on how to develop and implement risk-based inspection programs. Though FTA has said that it will develop such guidance, it does not have a plan or timeline to do so. Without guidance from FTA on how to develop and carry out risk-based inspections, state safety agencies may not allocate their limited resources efficiently, and important safety issues may go undetected. In addition, FTA has not developed a process or methodology to evaluate whether state safety agency enforcement authorities and practices are effective. Without clear evidence that state safety agencies' enforcement is effective, states and FTA may not be able to compel rail transit operators to remedy safety deficiencies. As a result, deficiencies may remain for long periods, potentially contributing to safety incidents. GAO recommends that FTA (1) create a plan, with timeline, for developing risk-based inspection guidance for state safety agencies, and (2) develop and communicate a method for how FTA will monitor whether state safety agencies' enforcement practices are effective. DOT agreed with our recommendations. DOT, NTSB, and WMATA provided technical comments that we incorporated as appropriate.