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For Metro, A Shift To Federal Oversight Might Bring More Questions, Not Fewer

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New calls to shift oversight of the Washington region’s public transit system to the Federal Railroad Administration are raising questions about that agency’s record of enforcing safety rules, and whether the change would mark a real improvement over the current oversight setup.

On Sept. 30 the National Transportation Safety Board issued an urgent recommendation as part of its ongoing investigation of Metrorail, the nation’s second-busiest subway system. It called for Congress to give FRA, which now oversees freight and passenger railroads, enforcement authority over Metro, removing it from the jurisdiction of the Federal Transit Administration (FTA).

“I have serious reservations about that for several reasons,” said Lawrence Mann, a chief author of the Federal Railroad Safety Act of 1970 who has followed FRA actions for more than 40 years. He points to a Government Accountability Office study that concluded the FRA is able to inspect only 1 percent of all U.S. railroad operations annually.

Although FRA has hired more inspectors to bring the total to 341 nationwide (which is still below the maximum of 362 authorized by Congress), the GAO report concluded “railroads have the primary responsibility for safety of the railroad system.”

“FRA has developed a risk-based approach to direct its inspection efforts, but the agency has been slow to implement broader risk reduction planning,” the report said.

Moreover, since the 1970s both Congress and the NTSB have criticized the FRA’s enforcement of rail safety standards, said Mann, an attorney who represented relatives of victims of the Red Line disaster at Metro’s Fort Totten station in 2009.

“Under the FRA’s enforcement policies, even if a defect is discovered by an inspection, the railroad is first given a chance to correct the violation. Only when the railroad does not correct the defect may the FRA take action,” Mann said.

“The word ‘action’ is used in its broadest terms because there is a slim chance the FRA will impose a fine. It is clear to anyone having knowledge in rail safety that FRA’s enforcement is inadequate,” he added.

Mann’s criticisms of the FRA should not be viewed as a defense of the current oversight arrangement under the FTA, an agency that lacks enforcement authority over commuter rail systems. “Congress has not given FTA jurisdiction to promulgate regulations and to enforce,” he said.

Tightening up oversight

The debate over how to fix Metro’s broken safety culture underscores the urgency facing the D.C. region’s transit authority, which has spent 2015 stumbling from one crisis to another. Ridership is slipping in the face of crumbling public confidence, a maintenance backlog is slowing necessary rebuilding work, and operating budget deficits are forecast well into the future.

Holes in the existing oversight of Metrorail were precisely what the NTSB cited in its urgent recommendation. The FTA must rely on the work of the local oversight body, the Tri-State Oversight Commission, which is “not independent, has no safety regulations, does no on-site inspections, and has no enforcement tools,” the NTSB’s chairman, Christopher Hart, said in a written statement released Oct. 2.

“The FRA has safety regulations for equipment, track, signals and operations. It also has safety inspection and enforcement resources that could be on Metrorail property soon after the transition takes effect. The FRA also has the authority to issue civil penalties, compliance orders, and emergency orders to correct safety hazards and remove track and equipment from service,” Hart said.

The FRA has not shut down a railroad’s operations for an extended period of time in order to bring it into compliance with safety standards, but temporary closures in specific areas have been enforced. For instance, following the May derailment in Philadelphia that killed eight passengers and injured more than 200, Amtrak was not allowed to resume operations on the Northeast Corridor until it had implemented measures to prevent trains from speeding around curves.

The agency also performed an assessment of Metro-North Railroad in New York, named “Operation Deep Dive,” following a 60-day review of its safety practices and infrastructure. The result was 27 “safety actions” that Metro-North must fulfill. The railroad had suffered two derailments and a power outage that affected service for two weeks.

While not perfect, the FRA’s more robust inspection regime would be an improvement, according to Steven Ditmeyer, a former top official during three stints at the FRA.

“It is the best alternative that is available now and in the foreseeable future,” said Ditmeyer, who now teaches railway management at Michigan State University.

“The FRA has been criticized, most recently by the GAO, for failing to have exerted sufficient regulatory oversight on the development of Positive Train Control systems,” Ditmeyer said. “So no regulatory agency is perfect, but they try to do their best under conflicting pressures.”

Editor's note: This story has been updated to reflect that since its publication, the Federal Railroad Administration released new figures on the number of its inspectors, now 341.

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