Rail Transit: Observations on FTA's State Safety Oversight Program and Potential Change in Its Oversight Role
Published: 2009-12-10T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Rail transit generally has been one of the safest forms of public transportation. However, several recent notable accidents are cause for concern. For example, a July 2009 crash on the Washington Metro Red Line resulted in nine deaths. The federal government does not directly regulate the safety of rail transit. Through its State Safety Oversight program, the Federal Transit Administration (FTA) requires states to designate an oversight agency to directly oversee the safety of rail transit systems. In 2006, GAO issued a report that made recommendations to improve the program. The Department of Transportation (DOT) is planning to propose legislation that, if passed, would result in a greater role for FTA in regulating and overseeing the safety of these systems. This statement (1) summarizes the findings of GAO's 2006 report and (2) provides GAO's preliminary observations on key elements DOT has told us it will include in its legislative proposal for revamping rail transit safety oversight. It is based primarily on GAO's 2006 report, an analysis of key elements of DOT's planned proposal through review of documents and interviews with DOT officials, and GAO's previous work on regulatory programs that oversee safety within other modes of transportation. GAO's 2006 report was based on a survey of the 27 state oversight agencies and transit agencies covered by FTA's program. GAO provided a draft of this testimony to DOT officials and incorporated their comments as appropriate.
section_title: What GAO Found
paragraphs: GAO's 2006 report found that officials from the majority of the state oversight and transit agencies stated that the State Safety Oversight program enhances rail transit safety but that FTA faced several challenges in administering the program. For example, state oversight agencies received little or no funding from FTA and had limited funding for staff. In fact, some required that the transit agencies they oversaw reimburse them for services. Also, expertise, staffing levels, and enforcement powers varied widely from agency to agency. This resulted in a lack of uniformity in how oversight agencies carried out their duties. As of 2006, 13 oversight agencies were devoting the equivalent of less than one full-time employee to oversight functions. Also, 19 oversight agencies GAO contacted lacked certain enforcement authority, such as authority to issue fines, and those that did have such authority stated that they rarely, if ever, used it. DOT is planning to propose major changes in FTA's role that would shift the balance of federal and state responsibilities for oversight of rail transit safety. According to DOT officials, under this proposal, the agency would receive authority to establish and enforce minimum standards although states still could maintain an oversight program. States could become authorized to enforce these standards if FTA determines their program capable and financially independent of the transit system they oversee. FTA would provide financial assistance to approved programs. Such changes would have the potential to address challenges GAO cited in its 2006 report. For example, providing funding to participating state agencies could help them maintain an adequate number of trained staff, and providing FTA and participating states with enforcement authority could help better ensure that transit systems take corrective actions when problems are found. Congress may need to consider several issues in deciding whether or how to act on DOT's proposal. These include determining whatlevel of government has the best capacity to oversee transit safety, ensuring that FTA and state oversight agencies would have adequate and qualified staff to carry out the envisioned program, and understanding the potential budgetary implications of the program.

section_title: Letter
paragraphs: We appreciate the opportunity to provide testimony on the mechanisms in  place to oversee the safety of the nation’s rail transit systems. Rail transit  moves more than 7 million people in the United States daily and generally  has been one of the safest forms of public transportation. However,  several recent notable accidents and other troubling safety events are  cause for concern. For example, a June 2009 crash on the Washington  Metro Red Line resulted in nine deaths. Metro also has suffered from  several incidents involving fatalities to track workers and other  employees. In addition, in May 2009, two trolleys in Boston collided,  injuring 49 people, and in July 2009 two rail cars collided in San Francisco,  injuring 48 people.
The federal government does not directly regulate the safety of rail transit  in the United States. However, in 1991, Congress required the Federal  Transit Administration (FTA) within the U.S. Department of  Transportation (DOT) to issue regulations requiring states to designate an  oversight agency to oversee the safety and security of rail transit agencies  and withhold federal funds if a state did not comply. Through the resulting  State Safety Oversight (SSO) program, FTA requires states to designate an  oversight agency to implement FTA safety and security oversight over rail  transit agencies. In 2006, we testified on the SSO program and issued a  report that made recommendations to improve the program. DOT plans to  submit a proposal for legislation that, if passed, would result in a greater  role for the department in regulating and overseeing safety of rail transit  systems.
My testimony today (1) summarizes the findings of our 2006 report and (2)  provides our preliminary observations on key elements DOT has told us it  will include in its legislative proposal for revamping rail transit safety  oversight.  In our observations, we cite key issues Congress may need to  consider in determining whether or how to act on DOT’s proposal. My  comments are primarily based on our 2006 report; interviews with DOT  officials about the department’s plans for proposing a greater federal role  in rail transit safety oversight; a review of related documents that we  obtained; a comparison of key elements of the planned proposal with  issues raised in our 2006 report; and our previous work on regulatory  programs, DOT’s transit programs, and efforts to oversee safety within the  various modes of transportation. Our 2006 report was based on a survey of  27 state safety oversight agencies and transit agencies covered by FTA’s  program as well as reviews of program documentation and guidance and  interviews with FTA, the National Transportation Safety Board, the  American Public Transportation Association, the Transportation Security  Administration (TSA), state safety oversight agencies, and transit agencies.  We plan to issue a report on challenges in improving rail transit safety in  fall 2010 for the Senate Committee on Banking, Housing, and Urban  Affairs. We conducted our prior and current work in accordance with  generally accepted government auditing standards. Those standards  require that we plan and perform the audit to obtain sufficient, appropriate  evidence to provide a reasonable basis for our findings and conclusions  based on our audit objectives. We believe that the evidence obtained  provides a reasonable basis for our findings and conclusions based on our  audit objectives. We provided a draft of our statement to the Department  of Transportation and incorporated its comments as appropriate.
Our 2006 report found that officials from the majority of oversight and  transit agencies stated that the SSO program enhances rail transit safety  but that FTA faced several challenges in administering the program. FTA  had not definitively shown that the program had enhanced safety,  however, because it did not have performance goals and did not measure  performance. Therefore, FTA had little information with which to track  oversight agencies’ performance over time. It has since taken steps to  begin developing performance goals and metrics. Other challenges facing  FTA in terms of assuring that the SSO program adequately oversees transit  safety included that state oversight agencies received little or no funding  from FTA and that some of them had limited funding for staff—in fact  some required the transit agencies they oversaw to reimburse them for  services. Also, expertise, staffing levels, and states’ enforcement authority,  e.g. fines, varied widely from agency to agency. As of 2006, 13 state  oversight agencies were devoting the equivalent of less than one full-time  employee to oversight functions. Finally, we found that transit and  oversight agencies were confused about the role of FTA and TSA in  overseeing security functions.
DOT plans to propose major changes in FTA’s role that would shift the  balance of federal and state responsibilities for oversight of rail transit  safety. According to DOT officials, under this proposal, FTA would receive  statutory authority to establish and enforce minimum standards. Still, FTA  might not have to take on the enforcement role in all circumstances; states  could become authorized to enforce these standards if FTA determines  their programs are capable and financially independent of the transit  system they oversee. FTA would provide financial assistance to approved  programs. These changes would have the potential to address some  challenges and issues we cited in our 2006 report. For example, providing  funding to participating state agencies could help them maintain an  adequate number of trained staff. Also, providing FTA and participating  states with enforcement authority could help ensure that transit systems  take corrective actions when problems are found. Congress may need to  consider several issues in deciding whether or how to act on DOT’s  proposal. These include    determining what level of government, state or federal, is most capable  of overseeing transit safety,    ensuring that FTA and state oversight agencies would have adequate  and qualified staff to carry out the envisioned program,    determining which enforcement mechanisms are best for rail transit so  that FTA or the state oversight agencies can ensure that identified  safety problems are corrected before they lead to accidents, and    understanding the budgetary implications of the program.
subsections: section_title: Background
paragraphs: The SSO program covers all states with fixed guideway systems operating  in their jurisdictions. FTA defines a rail fixed guideway system as any light,  heavy, or rapid rail system, monorail, inclined plane, funicular, trolley, or  automated guideway that is not regulated by the Federal Railroad  Administration (FRA) and is  included in FTA’s calculation of fixed guideway route miles, or  receives funding under FTA’s formula program for urbanized areas, or    has submitted documentation to FTA indicating its intent to be included in  FTA’s calculation of fixed guideway route miles to receive funding under  FTA’s formula program for urbanized areas.
Figure 1 shows the types of systems that are included in the SSO program.  Figure 1 shows the types of systems that are included in the SSO program.
In the SSO program, state oversight agencies are responsible for directly  overseeing rail transit agencies. As of December 2009, 27 state oversight  agencies exist to oversee rail transit in 26 states. According to FTA, states  must designate an agency to perform this oversight function at the time  FTA enters into a grant agreement for any “New Starts” project involving a  new rail transit system, or before a transit agency applies for FTA formula  funding. States have designated several different types of agencies to  serve as oversight agencies, including state departments of transportation,  public utilities commissions, or regional transportation funding  authorities. FTA has a set of rules that an oversight agency must follow,  such as developing a program standard that transit agencies must meet,  reviewing transit agencies’ safety and security plans, conducting safety  audits, and investigating accidents. In the program, rail transit agencies are  mainly responsible for meeting the program standards that oversight  agencies set out for them, which generally include developing a separate  safety and security plan, developing a hazard management process,  reporting accidents to oversight agencies within 2 hours, and other similar  tasks. Under the program, FTA provides limited funding to oversight  agencies in only limited instances, generally for travel or training. While  oversight agencies are to include security reviews as part of their  responsibilities, TSA also has security oversight authority over transit  agencies. (See fig. 2 showing roles and responsibilities of participants in  the program.)
FTA’s role in overseeing safety and security of rail transit is relatively  limited. FTA relies on a staff member in its Office of Safety and Security to  lead the SSO program. A program manager is responsible for the SSO  program along with other duties. Additional FTA staff within the Office of  Safety and Security assist with outreach to transit and oversight agencies  and additional tasks. FTA regional personnel are not formally involved  with the program’s day-to-day activities, but officials from FTA regional  offices help address specific compliance issues that occasionally arise and  help states with new transit agencies establish new oversight agencies.
FTA also relies on contractors to do many of the day-to-day activities,  ranging from developing and implementing FTA’s audit program of state  oversight agencies to developing and providing training classes on system  safety.
Rail transit has been one of the safest modes of transportation in the  United States. For example, according to DOT, in 2008, 57.7 people were  injured traveling in motor vehicle accidents per 100 million miles traveled  and 5.5 people were injured in commuter rail accidents per 100 million  miles traveled. For rail transit, the rate was 0.5 people injured per 100  million miles traveled. The injury rate on rail transit has varied from 0.2 to  0.9 injuries per 100 million miles traveled since 2002. Also, the Washington  Metro Red Line accident this summer marked the first fatalities involving a  collision between two rail cars on a U.S. rail transit system in 8 years.  However, according to FTA officials, the recent major incidents in Boston,  San Francisco, and Washington have increased their concern about rail  transit safety. In addition, FTA states that the number of derailments,  worker injuries, and collisions has increased on rail transit systems as a  whole in the last several years.
section_title: Our 2006 Report Found Most Participants Stated That the State Safety Oversight Program Was Worthwhile but FTA Faced Several Challenges in Administering the Program Effectively
paragraphs: Our 2006 report found that officials from the majority of oversight and  transit agencies with whom we spoke stated that the SSO program  enhances rail transit safety. Officials at several transit agencies cited  improvements in reducing the number of derailments, fires, and collisions  through actions undertaken as a result of their work with state oversight  agencies. However, despite this anecdotal evidence, FTA had not  definitively shown that the program had enhanced safety because it had  neither established performance goals nor tracked performance. Also,  FTA had not audited each state oversight agency in the previous 3 years,  as the agency had stated it would. Therefore, FTA had little information  with which to track oversight agencies’ performance over time. We  recommended that FTA set and monitor performance goals for the SSO  program and keep to its stated schedule of auditing state oversight  agencies at least once every 3 years. Although FTA officials pointed out  that tracking safety performance would be challenging in an environment  where fatalities and incidents were low, they agreed to implement our  recommendation. FTA assigned the task to a contractor and said that it  would make auditing oversight agencies a priority in the future.
We also found that FTA faced several challenges in assuring the  effectiveness of the program and recommending improvements to transit  agency safety practices.
Funding challenges limited staffing levels and effectiveness.  Officials at several state oversight agencies we spoke with stated that since  FTA provided little to no funding for rail transit safety oversight functions,  and because of competing priorities for limited state funds, they were  limited in the number of staff they could hire and the amount of training  they could provide. While FTA requires that states operate safety oversight  programs, capital and operating grants are not available to support existing  state oversight agencies once passenger service commences. FTA, however,  has begun to provide training for state oversight agency staff. With the  current financial crises most states are experiencing, states face increasing  challenges in providing adequate funding for state oversight agencies. Also,  in our 2006 report, we found that 10 state oversight agencies relied on the  transit agencies they oversaw for a portion of their budgets. In those cases,  the oversight agencies required that the transit agency reimburse the  oversight agency for its oversight expenses.
Expertise varied across oversight agencies. The level of expertise  amongst oversight staff varied widely. For example, we found that 11  oversight agencies had staff with no previous career or educational  background in transit safety or security. Conversely, another 11 oversight  agencies required their staff to have certain minimum levels of  transportation education or experience, such as having 5 years of  experience in the safety field or an engineering degree. In the agencies in  which oversight officials had little or no experience in the field, officials  reported that it took several years before they became confident that they  knew enough about rail transit operations to provide effective oversight— a process that new staff would likely have to repeat when the current staff  leave their positions. Officials from 18 of the 24 oversight agencies with  whom we spoke stated that additional training could be useful in providing  more effective safety oversight. FTA, under the current system, does not  have the authority to mandate a certain level of training for oversight  agency staff. In response to our prior recommendation, FTA has created a  recommended training curriculum and is encouraging oversight agency  staff to successfully complete the curriculum and receive certification for  having done so.
Staffing levels varied across oversight agencies. The number of staff  that oversight agencies devoted to safety oversight also varied. For  example, we found that 13 oversight agencies dedicated less than one full- time equivalent (FTE) staff member to oversight. While in some cases the  transit agencies overseen were small, such as a single streetcar line, we  found one state that estimated it devoted 0.1 FTE to oversight of a transit  agency that averaged 200,000 daily trips. Another state devoted 0.5 FTE to  overseeing five different transit systems in two different cities.
To help ensure that oversight agency staff were adequately trained for their  duties, we recommended that FTA develop a suggested training curriculum  for oversight agency staff and encourage those staff to complete it. FTA  implemented our recommendation and over 50 percent of state oversight  agencies have staff who have completed at least the first tier of this training.  Still, the number of staff devoted to safety oversight remains potentially  problematic. FTA currently does not require that states devote a certain  level of staffing or financial resources to oversight; without additional  funding from the federal government or another source, and due to the  fiscal difficulties most states are now experiencing, it is unlikely states will  independently increase staffing for safety oversight. FTA, however, has  asked many SSO agencies to perform formal manpower assessments to  ensure they have adequate resources devoted to oversight functions.
Enforcement powers of oversight agencies varied. The individual  authority each state oversight agency has over transit agencies varies  widely. While the SSO program gives state oversight agencies authority to  mandate certain rail safety practices, it does not give them authority to  take enforcement actions, such as fining an agency or shutting down  operations. Some states have given their oversight agencies such  authority, however. In our 2006 report, we stated that 19 of 27 oversight  agencies had no punitive authority, such as authority to issue fines, and  those that did have such authority stated that they rarely, if ever, used it.  While taking punitive action against a rail transit agency could be  counterproductive (by, for instance, withholding already limited funding),  several oversight agency officials told us the threat of such action could  potentially make their agencies more effective and other DOT modal  administrations with safety oversight authority can level fines or take  other punitive action against the entities they oversee.
Confusion existed about agency responsibilities for security  oversight. Our 2006 report also found that the transit and oversight  agencies were confused about the role TSA would take in overseeing  security and what role would be left to the state oversight agencies, if any.  We made recommendations to TSA and FTA to coordinate their security  oversight activities. The agencies agreed and FTA officials reported they  are now coordinating their audits with TSA.
section_title: Preliminary Observations on DOT’s Plans For Revamping Rail Transit Safety Oversight and Key Issues Congress May Need to Consider
paragraphs: DOT is planning to propose major changes in FTA’s role that would shift  the balance of federal and state responsibilities for setting safety standards  for rail transit agencies and overseeing their compliance with those  standards. Based on information provided to us by DOT, the department  plans to propose a new federal safety program for rail transit, at an  unspecified future date, with the following key elements:    FTA, through legislation, would receive authority to establish and  enforce minimum safety standards for rail transit systems not already  regulated by FRA.
States could become authorized to enforce the federal minimum safety  standards by submitting a program proposal to FTA and receiving  approval of their program. In determining whether to approve state  safety programs, FTA would consider a state’s capability to undertake  rail transit oversight, including staff capacity, and its financial  independence from the transit systems it oversees. DOT would provide  federal assistance to approved state safety programs. Participating  states could set more stringent safety standards if they choose to do so.
In states that decide to “opt out” of participation or where DOT has  found the program proposals inadequate, FTA would oversee  compliance with and enforce federal safety regulations.
These changes would give FTA the authority to directly regulate rail  transit safety and, in cooperation with the states, to oversee and enforce  compliance by rail transit systems with these regulations. These changes  would bring its authority more in line with that of other modal  administrations within DOT. For example, FRA, Federal Motor Carrier  Safety Administration, Federal Aviation Administration, and Pipeline and  Hazardous Materials Safety Administration promulgate regulations and  technical standards that govern how vehicles or facilities in their  respective modes must be operated or constructed. In addition, each of  these agencies use federal or state inspectors, or a combination of both, to  determine compliance with the safety regulations and guidance they issue.  Finally, these agencies can mandate corrective actions and levy fines to  transportation operators, among other actions, for noncompliance with  regulations.
The new program DOT is planning to propose has the potential to address  some challenges and issues we cited in our 2006 report. The consideration  of staffing levels in deciding whether to approve states’ proposed programs  and the provision of funds to approved programs could increase levels of  staffing. Requiring that participating states not receive funds from transit  agencies would make the state agencies more independent of the transit  agencies they oversee. Providing FTA and participating states with the  authority to enforce minimum federal safety standards across the nation’s  transit systems could help ensure compliance with the standards and  improved safety practices, and might prevent some accidents as a result.
While the new program, as envisioned by DOT, may have some potential  benefits, our work on the SSO program, other transit programs, and  regulatory programs suggests there are a number of issues Congress may  need to consider in deciding whether or how to act on DOT’s proposal.
Roles of the states versus FTA. The following questions would need to  be considered when determining whether changes are needed in the  balance of federal versus state responsibility for establishing rail transit  safety:    Are uniform federal standards and nationwide coverage essential to  achieving rail transit safety?
Which level of government, state or federal, has the capacity to do the  job at hand, taking into account such factors as resources and  enforcement powers?
In addition, shifting federal-state responsibilities for oversight of rail  transit safety would bring a number of operational challenges. These  include finding the appropriate level of FTA oversight of state programs  and allocating costs between the federal government and the states. The  new oversight system to be proposed would potentially involve major  changes in the way states interact with FTA in overseeing transit safety.  The new balance of state and federal responsibilities could take some time  for transit agencies to adjust to, especially those that would now be  reporting directly to federal officials.
Adequate staff with needed skills. FTA would need to ensure it has  adequate qualified staff to oversee safety under the new program,  especially in states that opt out of participating in the new program. FTA’s  current safety staff is very small as is the staff devoted to rail transit safety  oversight in most state agencies. Building the capability within FTA, its  contractors, and these state agencies to develop and carry out the  envisioned program would pose a number of challenges. However, the  actions FTA has taken in response to our 2006 recommendation to  institute a training curriculum for oversight agency staff, would give it a  head start on this process.
Enforcement. Congress would need to determine which enforcement  mechanisms to authorize FTA to use and FTA would need to develop an  enforcement approach that makes the best use of these enforcement  mechanisms. Other DOT modal administrations with safety oversight  responsibilities, such as the Federal Aviation Administration and FRA, are  authorized to issue fines or civil penalties to operators that violate  regulations. However, transit agencies are usually publicly owned and face  many financial challenges. As a result, fines and penalties could be  counterproductive to enhancing safety when funding is at a premium and  local riders or taxpayers ultimately could bear the cost of fines. Other  enforcement tools are options. For example, FRA may order a locomotive,  freight car, or passenger car out of service or may send warning letters to  individuals if a safety violation is found, among other enforcement actions.
Cost. According to FTA officials, their estimates of the total cost of the  new program the department plans to propose are very preliminary. Better  estimates of what, if any, costs that states would bear under the new  system will also be important before moving forward with this proposal.  This could include considering any estimated costs the federal government  would incur under various scenarios based on how many states opt out  and how many new federal employees or contractors would be required  under each scenario to act as trainers, inspectors, and administrative staff.  Currently, states bear most of the costs for transit safety oversight.  Determining these additional costs would be added as the federal and  state governments face significant increasing fiscal pressures. Further, it is  uncertain how the program will be paid for. Congress will need to  determine if riders, states, those who pay taxes to the Highway Trust  Fund, or the Department of the Treasury, or a combination of sources,  would bear the cost of this program.
In addition to the issues that Congress may need to address, FTA would  face some challenges in implementing a new system of transit safety  oversight. These include:    Variations in the different types of transit. The U.S. rail transit  system consists of several different types of vehicles, from heavy and light  rail to monorails and funiculars or inclined planes. These vehicles operate  on different kinds of track with different power sources and can vary from  new modern vehicles to vehicles that are 30 or more years old. Setting  federal safety regulations for these varying systems could be a lengthy  process and could require multiple parallel rulemakings.
Transition to the new system. If the new safety oversight system is  approved, it will take some time to transition to the new system. States  currently performing safety oversight that opt out in favor of federal  oversight will likely need to continue to perform their oversight functions  until FTA has additional staff and an enforcement mechanism in place.  However, a state may be less likely to replace staff who leave or ensure  staff in place stay adequately trained if the state is in the process of giving  over its oversight responsibilities to FTA. While the likely effect of this  may be minimal, this situation could create the possibility of relaxed  oversight during the transition period.
As part of our ongoing review of challenges to improving rail transit safety,  we will review states’ and FTA’s current efforts to oversee and enhance  rail transit safety as well as DOT’s efforts to strengthen the federal role in  overseeing rail transit safety.
Mr. Chairman, this concludes my prepared statement. I would be pleased  to respond to any questions that you or other Members of the  Subcommittee might have.
For further information on this statement, please contact David J. Wise at  (202) 512-2834 or wised@gao.gov. Contact points for our Congressional  Relations and Public Affairs offices may be found on the last page of this  statement. Individuals making key contributions to this testimony were  Catherine Colwell, Judy Guilliams-Tapia, and Raymond Sendejas,  Assistant Directors; Timothy Bober; Martha Chow; Antoine Clark; Colin  Fallon; Kathleen Gilhooly; David Goldstein; Joah Iannotta; Hannah Laufe;  Sara Ann Moessbauer; and Stephanie Purcell.
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