Background 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 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. Railroads 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 Accidents and  Incidents 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  Centralized Safety  Oversight Framework  While FTA Is  Implementing a State- Based Approach 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). Safety Regulations 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. Oversight Activities 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. Enforcement Mechanisms 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. FRA’s and FTA’s  Approaches to Rail  Safety Oversight  Have Strengths and  Limitations, and FTA  Can Improve  Implementation of Its  New Authorities 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. Regulations: FRA and FTA  Are Working to Improve  Rail Safety Oversight by  Considering Performance- based Regulations 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. Inspections: FRA Utilizes a  Risk-Based Model, While  FTA Oversees the  Development of State  Safety Agencies’ New  Programs 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. Enforcement: FRA Utilizes  Various Mechanisms; FTA  Has No Process or  Methodology to Assess  the Effectiveness of State  Safety Agency  Enforcement 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. Conclusions 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. Recommendations 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) Agency Comments 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. Appendix I: Comments from the Department  of Transportation Appendix II: GAO Contact and Staff  Acknowledgments GAO Contact Staff  Acknowledgments 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.
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.