[Senate Hearing 111-551]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-551

 
     EXAMINING THE FEDERAL ROLE IN OVERSEEING THE SAFETY OF PUBLIC 
                         TRANSPORTATION SYSTEMS

=======================================================================

                                HEARING

                               before the

                            SUBCOMMITTEE ON
           HOUSING, TRANSPORTATION, AND COMMUNITY DEVELOPMENT

                                 of the

                              COMMITTEE ON
                   BANKING,HOUSING,AND URBAN AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                                   ON

     EXAMINING THE FEDERAL ROLE IN OVERSEEING THE SAFETY OF PUBLIC 
                         TRANSPORTATION SYSTEMS

                               __________

                           DECEMBER 10, 2009

                               __________

  Printed for the use of the Committee on Banking, Housing, and Urban 
                                Affairs


      Available at: http: //www.access.gpo.gov /congress /senate/
                            senate05sh.html



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            COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS

               CHRISTOPHER J. DODD, Connecticut, Chairman

TIM JOHNSON, South Dakota            RICHARD C. SHELBY, Alabama
JACK REED, Rhode Island              ROBERT F. BENNETT, Utah
CHARLES E. SCHUMER, New York         JIM BUNNING, Kentucky
EVAN BAYH, Indiana                   MIKE CRAPO, Idaho
ROBERT MENENDEZ, New Jersey          BOB CORKER, Tennessee
DANIEL K. AKAKA, Hawaii              JIM DeMINT, South Carolina
SHERROD BROWN, Ohio                  DAVID VITTER, Louisiana
JON TESTER, Montana                  MIKE JOHANNS, Nebraska
HERB KOHL, Wisconsin                 KAY BAILEY HUTCHISON, Texas
MARK R. WARNER, Virginia             JUDD GREGG, New Hampshire
JEFF MERKLEY, Oregon
MICHAEL F. BENNET, Colorado

                    Edward Silverman, Staff Director

              William D. Duhnke, Republican Staff Director

                       Dawn Ratliff, Chief Clerk

                      Devin Hartley, Hearing Clerk

                      Shelvin Simmons, IT Director

                          Jim Crowell, Editor

                                 ______

   Subcommittee on Housing, Transportation, and Community Development

                 ROBERT MENENDEZ, New Jersey, Chairman

           DAVID VITTER, Louisiana, Ranking Republican Member

TIM JOHNSON, South Dakota            KAY BAILEY HUTCHISON, Texas
JACK REED, Rhode Island              MIKE CRAPO, Idaho
CHARLES E. SCHUMER, New York         BOB CORKER, Tennessee
DANIEL K. AKAKA, Hawaii              JIM DeMINT, South Carolina
SHERROD BROWN, Ohio                  MIKE JOHANNS, Nebraska
JOHN TESTER, Montana                 JUDD GREGG, New Hampshire
HERB KOHL, Wisconsin
MARK R. WARNER, Virginia
JEFF MERKLEY, Oregon

                Michael Passante, Transit Staff Director

               Harold J. Connolly, Housing Staff Director

              Travis M. Johnson, Republican Staff Director

                  Lisa Frumin,  Legislative Assistant

             Mitchell S. Warren, Professional Staff Member

                  Joe Hepp, Professional Staff Member

                  Bonnie Graves, Legislative Detailee

                                  (ii)
?

                            C O N T E N T S

                              ----------                              

                      THURSDAY, DECEMBER 10, 2009

                                                                   Page

Opening statement of Chairman Menendez...........................     1

Opening statements, comments, or prepared statements of:
    Senator Warner...............................................     2
    Chairman Dodd................................................     6

                               WITNESSES

Ray LaHood, Secretary, Department of Transportation, Accompanied 
  by Peter M. Rogoff, Administrator, Federal Transit 
  Administration.................................................     4
    Prepared statement...........................................    29
    Responses to written questions of:
        Chairman Dodd............................................    59
Barbara Mikulski, U.S. Senator from the State of Maryland........    14
    Prepared statement...........................................    31
John B. Catoe, Jr., General Manager, Washington Metropolitan Area 
  Transit Authority..............................................    17
    Prepared statement...........................................    33
    Responses to written questions of:
        Chairman Dodd............................................    59
        Senator Cardin...........................................    61
David Wise, Director, Physical Infrastructure Team, Government 
  Accountability Office..........................................    19
    Prepared statement...........................................    37
    Responses to written questions of:
        Chairman Dodd............................................    64
Brian Cristy, Director, Transportation Oversight Division, 
  Massachusetts Department of Public Utilities...................    20
    Prepared statement...........................................    53
    Responses to written questions of:
        Chairman Dodd............................................    67
William Millar, President, American Public Transportation 
  Association....................................................    21
    Prepared statement...........................................    54
    Responses to written questions of:
        Chairman Dodd............................................    68

              Additional Material Supplied for the Record

Statement of Benjamin L. Cardin, U.S. Senator from the State of 
  Maryland.......................................................    73
Statement of Arun Vohra, P.E., President MINI, LLC...............    74
Statement of Richard W. Clark, Director of the Consumer 
  Protection and Safety Division of the California Public 
  Utilities Commission...........................................    78
Transit Safety Bill..............................................    89
DOT Fact Sheet--The Public Transportation Safety Program Act of 
  2009...........................................................   104

                                 (iii)


                     EXAMINING THE FEDERAL ROLE IN
         OVERSEEING THE SAFETY OF PUBLIC TRANSPORTATION SYSTEMS

                              ----------                              


                      THURSDAY, DECEMBER 10, 2009

                                       U.S. Senate,
    Subcommittee on Housing, Transportation, and Community 
                                               Development,
          Committee on Banking, Housing, and Urban Affairs,
                                                    Washington, DC.
    The Subcommittee met at 9:33 a.m., in room SD-538, Dirksen 
Senate Office Building, Senator Robert Menendez (Chairman of 
the Subcommittee) presiding.

         OPENING STATEMENT OF CHAIRMAN ROBERT MENENDEZ

    Chairman Menendez. Good morning. This hearing of the 
Banking Subcommittee on Housing, Transportation, and Community 
Development will come to order. I would like to, first of all, 
thank Chairman Dodd and Ranking Member Shelby and Senator 
Vitter and their staffs for working with us to put together 
today's hearing.
    Chairman Dodd is a busy man these days. He is in the midst 
of achieving the most important reform in our health care 
system in a generation, while at the same time working hard to 
completely overhaul our regulatory financial system, not to 
mention his central role in formulating legislation to jump-
start our economy and create millions of new jobs. So in the 
interest of giving him a few minutes this week to sleep and 
eat, I volunteered to lead on this hearing. So we appreciate 
everything he is doing.
    I want to start off by praising the work of Secretary 
LaHood and Administrator Rogoff. They are overseeing transit 
policy at a time of historic ridership, but also at a time when 
States and localities have few resources to meet this demand. 
They have proven themselves able and visionary leaders in these 
trying times.
    As seen by the proposal they will be discussing today, 
their leadership on safety has been particularly important. In 
transportation policy, safety must always be of paramount 
importance. This past summer, the tragic Metro crash claimed 
the lives of nine people, including a retired commanding 
general of the D.C. National Guard and his wife, two working 
moms, a retired teacher, and a woman who worked with nurses 
around the world. We must never forget that coming up short on 
safety results in tragedies that must be avoided at any cost.
    As we begin this discussion, there are a few key points I 
would like to make.
    First, the way we currently regulate mass transit safety 
simply does not make sense to me. There is basically no Federal 
role in transit safety oversight, and, frankly, that is pretty 
shocking. We have 27 States with a mishmash of regulations who 
are underfunded, understaffed, who are lacking in safety 
training and oversight, and who are often not doing a good job 
of maintaining transit assets.
    Second, in the past 2 years, there has been a disturbing 
trend in transit safety. Fatalities, injuries, and derailments 
all seem to be trending upwards, and we must act promptly to 
make sure this trend is stopped and reversed.
    Third, it is important to keep in mind that despite the 
lack of Federal oversight and the disturbing trends in recent 
years, mass transit is still, however, by most measures the 
safest mode of transportation that there is, much safer than 
driving, safer than flying, even safer than commuter rail, 
which is governed by a very robust Federal safety system.
    The last point I would like to make is that no matter how 
well we regulate transit safety, we cannot expect safe systems 
if we do not invest in new infrastructure. According to an FTA 
report this past April, it would cost $50 billion just to get 
the Nation's seven largest transit systems to an acceptable 
state of good repair. A jobs bill is being put together as we 
speak, and I am hopeful that robust rail modernization funds 
will be part of that bill. Rail modernization funds spend out 
quickly, they create jobs, and they are an investment in 
infrastructure that is critical to our economic health. These 
funds must be part of any effort to make transit safer.
    So I want to thank the Administration for a well-thought-
out proposal. I look forward to working with them and the 
Chairman to make transit safety an important Federal priority. 
This issue is of the utmost importance and cannot be held 
hostage, in my view, by the reauthorization process. Therefore, 
despite a quite full Committee schedule, I certainly hope and 
expect that we will mark up transit safety legislation early 
next year.
    With that, let me recognize the distinguished Ranking 
Member, Senator Vitter, for his comments.
    Senator Vitter. Thank you, Mr. Chairman. I am eager to hear 
the testimony, so I will simply thank you and the Committee for 
this hearing and welcome Secretary LaHood, and I had the honor 
and pleasure of serving with him in the House. So thanks for 
your continuing service, Mr. Secretary.
    Chairman Menendez. Senator Warner.

              STATEMENT OF SENATOR MARK R. WARNER

    Senator Warner. Thank you, Mr. Chairman, and I appreciate 
the chance to be here and thank you and the Ranking Member for 
holding this important hearing. My apologies on the front end 
to the Secretary and Mr. Catoe and some of the others on the 
other panels. I have to step out in about 20 minutes.
    I want to, first of all, again echo the Chairman's comments 
on the importance of transit safety and the fact that it has 
been an area that I think has often been, at least at the 
Federal level, overlooked, and I have to acknowledge, as a 
former Governor, perhaps at the State level overlooked as well. 
So I want to start, again, by applauding the Secretary for his 
collaborative approach he has taken in trying to see how the 
Federal Government can be involved in strengthening these State 
and local efforts in terms of transit safety, and I really look 
forward to working with the Chairman and the Ranking Member and 
you on making sure we move forward with this.
    You know, echoing again what the Chairman said, the recent 
incidents on Metro are more than just an incident to me since 
this is a network that serves my communities in Virginia. And 
we all remember the tragic accident in Maryland in June. But as 
we know, there had been a series of other incidents that had 
taken place over the last few months, three of them actually in 
Virginia, one as recently as November 29th in West Falls 
Church. So this string of incidents really heightens the need 
for our attention and focus.
    Echoing again what the Chairman said, we need to make sure 
we have got adequate Federal funding, and I am happy to see 
that the recently released conference report on the fiscal year 
2010 Transportation, HUD appropriations bill includes about 
$150 million in new funding for grants, and WMATA can go after 
some of those to address safety and maintenance issues. I think 
one of the things all of us who live in the greater capital 
area realize is the Metro system--which I can still remember 
when we prided it as brand spanking new--is getting up in age 
now. [Inaudible], whom I have worked with for many, many 
decades, reminded me it is about 35 years old, 35, 40 years old 
at this point, and just like any house that gets that age, 
things all of a sudden start breaking down at one. And I think 
we are seeing that, at least on the maintenance side with 
Metro, it is showing its age.
    So I echo the Chairman's comments that not only do we need 
to increase our focus on safety, but we also have to increase 
our focus on maintenance.
    I just want to make two final points before the Secretary's 
comments. I hope we would look at this from the standpoint of 
how we get transit safety right. There very well probably 
should be an increased Federal transit safety role. As I echoed 
earlier, so many States, perhaps with the exception of 
California, most States do not do a very good job on transit 
safety. I know we have gone back to my Secretary of 
Transportation--or Governor Kaine's Secretary of 
transportation, who was also my Secretary of Transportation, 
and trying to look at what authority we thought we had in 
Virginia to take on transit safety. And it has just never been 
high enough on our priority list, and there is some uncertainty 
on what kind of authority at the State level we have.
    And in terms of Metro, that is further compounded because 
of the challenge with the three jurisdictions. I know that the 
biggest divide oftentimes talked about in this area is 
oftentimes viewed as the Potomac River between Virginia, 
Maryland, and the District. And with these three jurisdictions 
here in the Metro system, we are going to have to find a way to 
perhaps strengthen the tri-jurisdiction oversight board; we are 
going to have to look at how we strengthen both local and State 
abilities to look at safety.
    And since I am not going to be here for Mr. Catoe's 
comments, I do want to at least pose a couple questions. One is 
that we have read that Metro has lost a number of its 
experienced employees in the normal course of retirement, and 
as we have seen, some of these positions, particularly in terms 
of safety oversight, may be being replaced by much younger 
employees. I would hope to hear from Mr. Catoe's testimony what 
he is doing to emphasize safety in terms of training of all 
employees, how we make sure that safety is a high priority and 
is measured and employees are measured on their safety 
performance. And I am wondering, in light of the fact that we 
have had this attrition, what else we can do to slow further 
attrition of an experienced workforce; what new safety training 
programs are you putting in place; and then, third, has there 
been any thought to, at least on some short-term basis, even 
perhaps bringing back some of the recently retired employees 
who have got an expertise in safety on how they might help 
consult or further train this newer workforce.
    So while I will not be here to hear his responses, I look 
forward to getting the answers to those questions and, again, 
look forward to working with you, Mr. Secretary and Members of 
this Committee, on trying to get this right. Thank you.
    Chairman Menendez. Thank you, Senator Warner.
    Senator Reed.
    Senator Reed. I just want to recognize and welcome Mr. 
LaHood. It was a pleasure serving with you in the Congress, 
Ray. And also Peter Rogoff, who was very kind and able when he 
was here in the Senate. Thank you, Peter.
    Thank you, Mr. Chairman.
    Chairman Menendez. And he is still kind and able, right?
    Senator Reed. Well, we will see.
    [Laughter.]
    Chairman Menendez. Well, that is why I posed the question. 
Thank you.
    Let me introduce Secretary LaHood, whom we all know very 
well. He is the 16th United States Secretary of Transportation, 
and while he has had a relatively short tenure, he has already, 
I think, distinguished himself in the role. Several of us have 
had the opportunity to serve with the Secretary back in the 
House of Representatives where we proudly served with him on 
the Transportation and Infrastructure Chairman.
    So, with that, Mr. Secretary, we welcome you and are ready 
for your comments.

       STATEMENT OF RAY LaHOOD, SECRETARY, DEPARTMENT OF 
TRANSPORTATION, ACCOMPANIED BY PETER M. ROGOFF, ADMINISTRATOR, 
                 FEDERAL TRANSIT ADMINISTRATION

    Mr. LaHood. Mr. Chairman, Mr. Ranking Member, thank you 
very much for the opportunity to testify on our proposed 
legislation to reform the Department of Transportation's role 
in overseeing the safety of our Nation's rail transit systems. 
With me today is Peter Rogoff, whom all of you know. He is our 
Transit Administrator now and doing a great job.
    Traveling by rail transit in the remains extraordinarily 
safe, yet serious accidents do occur, such as this summer's 
tragic Washington Metro crash and other recent accidents in 
Boston and San Francisco. We believe additional action is 
needed to make rail transit even safer.
    Rail transit is currently the only mode within the 
Department that operates without comprehensive Federal safety 
regulations, oversight, or enforcement authority, and we must 
remedy that gap. Rail transit systems carry far more passengers 
daily than either our domestic airlines or passenger and 
commuter railroads, where safety is stringently regulated by 
the FAA and the FRA, respectively. Yet the DOT is prohibited by 
a provision in the Urban Mass Transportation Act from issuing 
national safety regulations for rail transit systems. That 
antiquated provision was put into law 45 years ago. I ask you 
to change it now so that we can address the safety needs of the 
more than 14 million Americans that use these rail transit 
systems every day. This is an antiquated law, and it needs to 
be changed.
    At present, the Nation's major metropolitan subway and 
light rail systems from Seattle and San Francisco, to Chicago, 
Boston, New York, and Atlanta, are subject only to the Federal 
Transit Administration State Safety Oversight program. This 
program lacks Federal statutory authority to establish 
meaningful minimum safety thresholds in States where rail 
transit systems operate. Each rail transit system is permitted 
to determine its own safety practices. It is up to State 
governments, not FTA, to determine the extent of regulatory 
oversight and enforcement authority granted to each transit 
system.
    This results in a patchwork of 27 separate State oversight 
programs guided by a regulatory framework of inconsistent 
practices, limited standards, and marginal effectiveness. What 
is more, most States devote insufficient resources to these 
safety programs nationwide, with one exception: State safety 
oversight agencies employ an average of less than one full-time 
person per year to do this work. Under these conditions, we 
risk transit safety problems going unidentified and 
uncorrected, especially as the transit infrastructure gets 
older and available revenues for transit remain tight.
    Clearly, urgent reform is needed now. Under the leadership 
of our Deputy Secretary John Porcari, our Department has 
developed a legislative proposal that has now been formally 
transmitted to you all on behalf of the President, to the 
Speaker of the House, and the President of the Senate, and I 
ask you consider our reform proposal seriously and promptly.
    Our legislative proposal would accomplish three goals to 
strengthen transit safety nationwide.
    Number one, through the FTA, it would establish and enforce 
minimum Federal safety standards for rail transit systems that 
receive Federal transit funding.
    Two, it would establish a safety certification program that 
would provide Federal assistance to eligible States that elect 
to carry out federally approved public transportation safety 
programs and enforce Federal regulations. Through this 
provision, we seek to ensure that States will now have the 
manpower and training and the enforcement tools to conduct 
meaningful oversight. In States that choose to opt out, the FTA 
will enforce the new Federal standards.
    And, three, the program would ensure that any State agency 
overseeing transit systems would be financially independent 
from the transit systems it oversees. This morning, I have 
informed Congress that we would establish a transit rail 
advisory committee to develop new rail transit safety 
recommendations for FTA's consideration. The advisory committee 
will be made up of safety specialists from transit agencies, 
labor, and academia. Their expertise will guide much of our 
regulatory effort. Our goal is not to impose highly detailed 
regulations but, rather, to encourage rail transit agencies to 
use modern risk analysis to identify their own unique safety 
vulnerabilities and then take action.
    Safety remains our highest priority at DOT. We have 
established in the Department a DOT Safety Council that will 
tackle critical and cross-cutting safety issues across all 
transportation modes. Our transit safety legislation proposal 
was brought before our council and approved through the input 
of safety experts across the entire Department. I believe our 
proposal offers a critical and necessary step to provide the 
consistent oversight the rail transit industry needs to ensure 
safe operations for transit workers and the traveling public.
    We look forward to your questions, Mr. Chairman, and thank 
you again for your leadership, for Chairman Dodd's leadership, 
and allowing us to be here to testify today.
    Chairman Menendez. Thank you, Mr. Secretary, for your 
testimony.
    Let me welcome and call upon the distinguished Chair of the 
full Committee, who I guess I gave just enough time to have a 
little breakfast before he got here.
    Chairman Dodd. Well, I thank you for that.
    Chairman Menendez. With everything you are doing, in my 
opening statement--we are amazed that you actually--health care 
reform, the jobs package, financial regulatory reform. So we 
are thrilled to have you here.
    Chairman Dodd. Well, I would not miss Ray LaHood, a friend 
and colleague.
    Mr. LaHood. Thank you, sir.

           STATEMENT OF CHAIRMAN CHRISTOPHER J. DODD

    Chairman Dodd. I will be very, very brief.
    First of all, let me thank Senator Menendez for doing this. 
He has a strong interest, obviously, in the subject matter, and 
you see by just the participation here of Senator Vitter as 
well as Mark Warner and Jack Reed and others. This subject 
matter is one that all of us have a great deal of interest in, 
and, Ray, we are very excited, obviously--and you and I have 
worked already on a number of issues together--about your 
leadership in this effort. So I appreciate that very, very 
much.
    As I said before, this is a--we often talk about win-win 
issues. I often describe this issue as a win-win-win-win-win, 
and basically what that means is it cuts down traffic 
congestion, what we are talking about, transit policies, 
revitalizes communities, reduces our dependence on foreign oil, 
protects our environment, and perhaps most importantly, 
connects people to jobs and services. And so this is an issue 
that truly demands our ongoing attention.
    And you may have said this already, Mr. Chairman, and if I 
am repeating some of your remarks, I apologize. But I was 
stunned to see the numbers on ridership--and I know you and I 
have talked about this, Ray, already, but the highest numbers 
since 1956, 10.7 billion trips taken last year on public 
transit. And so as Chairman of the Committee working with 
Senator Menendez and others, Senator Shelby, we want to work 
with you to increase that number in the years to come as well.
    But a first priority, obviously, is security of our transit 
systems, and even though there are problems and we read about 
them and highlight it, I think it is important to note that 
among the safest modes of transportation is transit. From 1998 
to 2007, incidents on public transportation rail systems fell 
by half, which is a very positive sign, despite the notoriety, 
obviously, of some of these major problems we have seen. But a 
recent series of high-profile accidents have some Americans 
concerned, and rightfully so. Since last spring, there have 
been accidents in Boston, San Francisco, and here in 
Washington. Nine people have lost their lives, 133 have been 
injured--obviously, number that are not acceptable. But, still, 
I think the record overall has been a pretty good one.
    The Transit Administration has limited authority, as you 
have pointed out, to implement and enforce national transit 
safety standards, and we need to correct that, meaning that we 
have gone without a proper national safety program. States 
handed an unfunded mandate have been forced to scrap by the 
State Safety Oversight Boards. Many of these boards lack 
authority and expertise, as you point out, and here is where we 
have got to close that gap, obviously. This is an ad hoc 
approach to transit safety. Oversight has got to be replaced 
with a clear national transit safety standards, and I support 
you in that effort.
    Secretary LaHood and Administrator Rogoff have taken a 
leadership role, and we are deeply grateful to both of you for 
doing so, and we will closely review it and work with you, and 
by improving our oversight structure, it will not be enough. We 
need to address the enormous backlog of needed investments in 
transit infrastructure, and you and I have talked a lot about 
this.
    Metro North, which provided nearly 40 million trips in 
Connecticut last year alone, has not had a collision in more 
than 25 years. But we cannot keep running along aging rail 
lines and decaying tracks and bridges and expect the record of 
safety to continue. It just will not happen.
    A recent rail modernization study by the FTA of the 
Nation's nine largest transit operators, including Metro North, 
found that one-third of the studied agencies' assets are near 
or have exceeded their expected life span and are in either 
marginal or poor condition. We are running about a $50 billion 
deficit in funding for the needed repairs, which is just going 
to only grow.
    Funding levels for the Fixed Guideway Modernization Program 
lag well behind what is needed to address backlogs in repair 
and replacement and must be addressed in the next 
transportation bill.
    We can get a head start on catching up by funding the 
transit capital investment, the jobs bill, something I think we 
ought to do. Rebuilding and repairing our infrastructure will 
create jobs, obviously, we all know and create more reliable 
systems. No rider should ever wonder if they are safe on our 
transit systems.
    So I commend you for what you are doing, and I should note 
that Senator Mikulski is also testifying today, and she has 
taken a great interest in this issue as a result of the tragic 
accident last summer on the Washington Metro system. So I would 
like to thank our witnesses in advance and, Ray, for your 
testimony as we move forward on this, and obviously, the 
opportunity here for us to take advantage of what people now 
perceive as a needed area of interest and concern ought to be 
utilized. And so I thank you.
    I thank again Bob Menendez, who has done just a wonderful 
job on this issue as well, and we share, obviously, in our 
region, along with Jack, this tremendous dependency and a 
growing dependency and an opportunity for us to really expand 
and lead the country in so many ways in this area. So I thank 
you and I thank Bob.
    Thanks, Mr. Chairman.
    Chairman Menendez. Thank you, Chairman.
    We will turn to a round of questions here. We will put 5 
minutes on the clock. Let me start off. Mr. Secretary, again, I 
want to reiterate I think this is a strong proposal that sets 
us on the path to a much safer national transit system, but I 
have got a few questions.
    One--and, you know, the Administrator is sitting next to 
you--is FTA ready for this type of change? Up until now, I view 
the FTA as much more of a grantmaking organization, and my 
understanding is that it has less than full-time employees--
three full-time employees that are focused on safety. So the 
question is: Can FTA effectively change its mission and can it 
effectively ramp up, assuming the Congress passes the 
legislation and sends it to the President? Is that something 
that you envision being able to happen?
    Mr. LaHood. Yes, sir, Mr. Chairman. We believe that upon 
enactment and having this bill signed, whatever you all do, it 
will take upwards of 3 years to really implement it, and during 
that time we will be able to staff up and work with the States 
on really developing the very best safety program possible. We 
believe it is possible, and if you do not mind, I will let 
Peter say a word about this also.
    Chairman Menendez. Absolutely.
    Mr. Rogoff. Well, Mr. Chairman, we have been working with 
OMB in development of the 2011 budget proposal of the President 
to make sure that there is a meaningful funding increment to 
hire the necessary staffing both in terms of folks who write 
regulations, economists, attorneys, but also to better finance 
the State partners in the field so they can buildup their 
expertise and inspections, the training costs, the salary costs 
to stand up this system.
    Chairman Menendez. Which brings me to my second question, 
some of the details which have to be fleshed out, and those 
details are going to determine whether the safety regime is 
going to be successful or not. When do you envision being able 
to give us insights as to what type of oversight authority 
States are going to need to meet Federal standards? And how 
much are we talking about in terms of projected costs as well 
as, you know, what type of staffing will be necessary in order 
to meet these new more rigorous standards?
    Mr. Rogoff. Well, sir, the funding increments and the 
funding needs of the program have about 30 components. First, 
as I mentioned, is getting the necessary folks in--house in FTA 
to do the regulation writing. Importantly, because the State 
have stood up sort of the bare minimum in terms of State 
oversight, our proposal envisions the Federal Government taking 
over that cost and growing it in terms of their--you know, 
right now, as the Secretary said in his opening statement, 
these State agencies, with one exception, average less than one 
person per year. We do not think that is anywhere near 
adequate. So we would propose through Federal grants to grow 
that resource both to handle the staffing costs and the 
training costs.
    Now, overall, in terms of hard numbers, we are not in a 
position while the 2011 budget is being developed to talk about 
hard numbers, but we are comfortable saying that it will be 
well less than 1 percent of the FTA's total budget. We are 
fine-tuning with OMB those needs right now.
    In the area of authorities that we would expect the safety 
partners in the States to have, in order for us to certify them 
as an adequate State partner to enforce Federal regulations, in 
general we want them to have the necessary teeth to actually 
compel the attention of the transit agencies they oversee. And 
that is something we have not seen to date. So that could--not 
necessarily but could--include the ability to assess fines. 
They would have to have full access to inspect those systems. 
They would have to have full access to all of the agencies' 
documentation. And if we found them to be inadequate, we would 
have Federal FTA personnel handle the oversight in that State.
    Chairman Menendez. One last question. Mr. Secretary, you 
talked about in your testimony the desire to have performance-
based measurements when evaluating whether an agency is 
operating safely or not. What type of performance measurements 
are we talking about? Are we talking about the number of 
accidents, personnel dedicated to safety, condition of systems? 
What are we looking at?
    Mr. LaHood. Well, we have some experience with this through 
the FRA and also through our pipeline safety program in the 
Department, and we would probably look at those standards and 
issues in relationship to what best practices have been with 
the FRA and our pipeline safety, and then work with the transit 
organizations to make the highest safety standards and our 
ability to really oversee those in a way that reflects the 
values that, you know, safety is number one.
    We had a meeting, Peter and I convened a meeting of transit 
groups from around the country--this was a few months ago--to 
explain to them that we felt it was important for the 
Department to step up on safety and to elicit their ideas on 
how we could use their expertise, whatever they had, with our 
expertise to really develop these kinds of standards.
    So we are going to take best practices from around the 
country. We are going to take best practices from within our 
own Department through the FRA, which, you know, does some of 
this, and also our pipeline safety, and really try and use best 
practices to develop these new standards.
    Chairman Menendez. Just one quick follow-up. I think it is 
great to have the stakeholders with you. What was their 
attitude?
    Mr. LaHood. Well, I will let Peter talk about that. I think 
the fact that Mr. Catoe is here today, he just told me before 
we began, he supports what we are doing, and he has given us a 
lot of encouragement to move ahead with it. I think that is a 
very strong signal from one of the largest Metro systems in the 
country--America's Metro system, if you will. And we appreciate 
the fact that he is here today supporting our efforts, and I 
think that is true. But Peter was actually interfacing with 
these folks a little more than I was.
    Mr. Rogoff. Mr. Chairman, I would say there are a lot of 
elements of our legislative proposal that have been infused by 
our meetings with the stakeholders, not just--we had State DOT 
commissioners at that meeting. Senator Warner talked about his 
State commissioner who frankly admitted at that meeting that he 
did not know, until the issue of the Norfolk rail system came 
to him, that he even had this responsibility in his agency. Two 
other State transportation commissioners basically confessed 
the same thing as part of that stakeholders meeting.
    So, clearly, we took from that the need to raise the 
visibility and either raise the capability of the State 
partners or, frankly, replace them with a Federal presence to 
make sure that the issues are being attended to.
    Chairman Menendez. Thank you very much.
    Senator Reed.
    Chairman Dodd. Just quickly----
    Chairman Menendez. Senator Dodd.
    Chairman Dodd. Senator Menendez asked the one question, but 
we are doing a lot of opting out today in various proposals 
around Congress, whether it is public options or the like. And 
I notice here, despite the efforts--and I commend you for 
them--you allow the States to opt out here. And just given the 
budgetary constraints and all the other pressures that every 
one of our States is facing across the country--I talked to my 
Governor the other today, spoke to the Speaker of the House 
last night on matters in Connecticut, and they are all facing 
it. And I just wonder, how are you going to encourage the 
States not to opt out, it seems to me, given the pressures they 
are under?
    Mr. Rogoff. Well, sir, we are talking about adopting, 
basically taking on the State costs as a Federal cost in this 
instance. So we would be covering--if they would grow the 
inspection presence and grow their authorities to do an 
adequate job, we would cover the salaries, we would cover the 
training, we would cover the travel of those State partners.
    They could still opt out. There are a couple of States--
Wisconsin might be one that has a very short amount of mileage; 
Arkansas might be another that has only less than 4 miles of 
rail transit service. They may opt out only because the effort 
might not seem worthy given the size of their systems. But, in 
general, if we are taking on the costs, we would hope that they 
would continue to participate with us.
    Chairman Dodd. Well, I hope you are right, as well. Let us 
know. Let us know in what ways we can incentivize that even 
more, because that will be critically important.
    Last, let me just raise--and Peter, let me quote you, 
because I thought this was a very strong statement and one I 
couldn't agree with more. And the quote that you made in 
August, I think it was, of this year, you said, ``Deferred 
maintenance items, if deferred long enough or left undetected, 
can become critical safety risks. The issues of the conditions 
of our transit infrastructure and the safety of our transit 
systems are inextricably linked,'' end of quote. I mean, it is 
a very concise, clear statement, it seems to me. So I also hope 
that we think of ways, Ray, to start talking about addressing 
the backlog.
    These problems just grow. I mean, I talked about the $50 
billion now. Those numbers really become exponentially larger 
with every passing day and week, and particularly if ridership 
is up and more demand is on it, more stress on the systems. I 
mean, all of these factors contribute to that.
    And I realize this is hard. We have got to think more 
creatively about how we finance and budget these things. I know 
you have heard me and my colleagues probably ad nauseam to the 
boredom of many of them, I think. I am talking about this 
Infrastructure Bank idea, particularly for regional and 
national infrastructure needs of the country. There are other 
ideas, the bonding ideas that Ron Wyden has talked about. I am 
sure there are many other ideas.
    We will never do this out of the normal appropriation 
process. Despite the Herculean efforts of our colleague from 
Maryland and others, there just are limits. I mean, talk about 
the magnitude of the problem and the ability either to cut 
other spending or to raise taxes, obviously, we all know who 
have been here more than a week, that is impossible. So we have 
got to think differently about how we do this, and we don't 
have a lot of time, in my view, because the problems become so 
monumental and the stresses on the system even larger all the 
time.
    So I hope there is a high priority, and even though it 
doesn't necessarily produce the job tomorrow that people would 
like, and I would like it, as well, we had better start 
thinking about these longer-term ideas and how sustaining these 
systems--or, frankly, this is all going to be--we are going to 
have more safety problems. I don't care how many bills we pass. 
You let your system begin to collapse as it is, that deferred 
maintenance just predicts the kind of safety problems you are 
going to have. So they are inextricably linked, to quote Peter.
    Mr. LaHood. Well, Mr. Chairman, if I could just say, I know 
that you know this, but it is worth saying. At the economic 
summit that President Obama hosted at the White House, he sat 
in on the infrastructure panel that I was a part of and he 
talked about the Infrastructure Bank. The President is very 
keen on this idea, so obviously we are very keen on it. There 
is a lot of momentum growing for the Infrastructure Bank for 
the very reason that you say. There is just not enough money to 
do all the things we all want to do around here and this is a 
pretty good way to really identify some big things that can be 
done. I think you will see a lot of interest from this 
Administration, from the President on down, for this idea.
    Mr. Rogoff. Sir, could I just add two things real quickly 
to that point? When the Secretary took office, we established a 
new strategic plan for the Department, and one of those five 
priorities for the Department is the state of good repair of 
the transportation system. It is not just limited to transit. 
It covers the highway system and the pipeline network and all 
those things. But I think you will see going forward a budget 
emphasis on not just expanding new systems, but also on 
focusing on what is the condition of the existing 
infrastructure.
    Also, recognizing that that backlog exists, and as you 
point out, we are not going to buy it down tomorrow. We think 
this proposal is essential to that because it requires folks to 
use safety management systems, recognizing that the system may 
be in poor repair. How do we identify what the greatest safety 
risk is first, before the accident happens? That is an 
elemental part of this proposal.
    Chairman Dodd. Thank you. Thank you very much.
    Chairman Menendez. Thank you.
    Senator Reed.
    Senator Reed. Thank you very much, Chair Menendez, and 
thank you again, gentlemen, for not only your testimony today, 
but your service.
    Just following Senator Dodd's point, if we subsidized these 
transit systems at the rate we subsidize the airline 
infrastructure and the road infrastructure, these problems 
might be self-correcting because the money would be adequate to 
do this. I think every system wants to do this. This is not 
something that they are saying, no, no, no, don't bother us. 
They want to have a safe system.
    But let me ask a very specific question, and that is, 
within the legislation, there is a proposal to expand coverage 
to bus systems and there are two possible ways to do that. One 
would be the bus--or there are several possible ways. One is 
the bus systems that are linked to the transit rail systems you 
are proposing. The other would be to bus systems are not, and 
that is the case in Rhode Island, where we have a statewide bus 
system which has a reasonably good record, but we can always do 
better.
    Just can you both, Mr. Secretary and Mr. Rogoff, comment on 
this. Will you exercise this authority? Is this something just 
good to have on the books? Or is this part of a specific plan 
with a time table?
    Mr. LaHood. Well, I will let Peter comment, too. It is a 
part of really trying to look at this in a comprehensive way. 
As Peter indicated, our number one priority at DOT is safety in 
all modes. We know that people ride not only trains, light 
rail, but buses, and we just think there needs to be attention 
paid to this, and we didn't want to leave it out and then be 
criticized for, how come you are not taking care of this mode 
of transportation?
    Mr. Rogoff. The only thing I would add, sir, it is not in 
our near-term plans to take on the bus regulatory agenda. We 
want to walk before we run. We think that the greater focus 
should be on rail. But since we are prohibited by law since 
1964 from regulating in either area, we felt it important when 
coming to you and asking that prohibition be lifted that we 
address the entire transit universe and have the option of 
getting into the bus area if we feel it is necessary.
    Senator Reed. I appreciate that. It helps clarify your 
intentions.
    I understand, not directly, but at least indirectly, for 
the National Highway Traffic Safety Agency and the Federal 
Motor Carrier Safety Administration, they have--probably not 
coordinated, but they have authority in this area. Is the first 
step to sort of coordinate their activities, existing 
activities? Is that something you are thinking about?
    Mr. Rogoff. Before--again, our emphasis is really on the 
rail area.
    Senator Reed. Right.
    Mr. Rogoff. We wanted to reserve the statutory authority 
that the Secretary makes the necessary finding to get in the 
bus area. But if we got to that point, we would have very clear 
delineations of authority, as you correctly point out. NHTSA 
and FMCSA have different regulatory authorities, depending on 
whether it is focused on the driver or the vehicle. If we were 
to get into this space, we would focus more on the systems, and 
like I said, that is not in our near-term plans.
    Senator Reed. Just a final question. The thrust of the 
legislation is to have a transit system independent safety 
oversight body. I don't know, is that the system today 
everywhere, or will some States and localities have to modify 
their approach? And also, how do you ensure this independence? 
And it goes, I think, to a question Senator Dodd raised about 
paying for this and making requirements on States and 
localities and not being able to fully satisfy their funding.
    Mr. Rogoff. Well, we would like to fully satisfy their 
funding by doing it through grants to the State participants. 
But importantly, they would have to--a number of them would 
have to change their governance structure. This is one of the 
deficiencies that we wanted to address head-on. Right now, some 
of these transit oversight agencies actually depend on the 
transit system they oversee for their budget. It is a conflict 
of interest we don't allow anywhere else in Federal 
transportation safety. We don't allow the airlines to decide 
how much the FAA inspectors will get paid this year or what 
their numbers will be. We don't allow the freight railroads to 
determine how many rail inspectors there will be and how much 
they get paid.
    But somehow, this current system for transit rail safety 
has evolved into where certain systems have been allowed to 
either pay their safety oversight entity or not. By taking over 
at the Federal level those costs, we hope to eliminate that 
conflict of interest, and yes, there would have to be some 
governance structures as well as boosting of staff and 
capability.
    Senator Reed. Thank you. Thank you, Mr. Chairman.
    Chairman Menendez. Thank you, Senator Reed.
    Well, let me thank you, Mr. Secretary and Mr. 
Administrator. We appreciate it and look forward to continuing 
to work with you and the Chairman of the Committee.
    Mr. LaHood. Thank you very much.
    Chairman Menendez. As you depart, let me welcome our 
distinguished colleague from Maryland, Senator Mikulski, who 
has been a vocal advocate for more Federal oversight of the 
transit safety issue and recently introduced S. 1506, the 
National Metro Safety Act, which I know she is going to want to 
talk about today.
    Senator Mikulski, thank you for joining us and we look 
forward to hearing your testimony.

 STATEMENT OF BARBARA MIKULSKI, U.S. SENATOR FROM THE STATE OF 
                            MARYLAND

    Senator Mikulski. Thank you very much, Mr. Chairman, and 
thank you for those nice words of introduction.
    I really want to thank you for your national leadership on 
transportation safety in general and also on this transit 
safety issue in particular and the entire Committee. You were 
prompt in responding to my request to take a look at these 
issues affecting the Washington-Maryland-Virginia Metro System, 
and I really would like to compliment Secretary LaHood and the 
President.
    You know, we have had these terrible accidents and the 
reaction has been swift, it has been urgent, and it has been 
thorough. And I think if we all work together, the executive 
and legislative branch, you as the authorizers, we as the 
appropriators, we can really, within the next year, really do 
something that we can feel proud of and that our constituents 
can rely on. I feel like it is a new day, that there is a 
freshness in leadership and a commitment to rigorous follow-
through.
    I recognize that transit safety is a national problem. But 
I am here today to speak about the Washington Metro that serves 
Maryland, Virginia, and the District of Columbia. I am here to 
speak up for all the people in the Capitol Region, over 2 
million people who every day ride the Metro, go to school on 
the Metro, keep their doctors' appointments on the Metro, and 
use the Metro.
    But the Metro also serves the Nation. It is America's 
subway. Your constituents and many people from around the world 
use the Metro when they come to Washington and they need to be 
able to rely on Metro for not only the reliability of 
timeliness and adherence to schedule, but also for safety.
    I want to commend today the day-to-day staff at Metro, the 
worker bees at Metro, the people who actually get out there 
every day and operate it. They have done a fantastic job, and I 
just remind you that on 9/11, they helped evacuate the District 
of Columbia at some considerable risk and fear to their own 
lives. They also did a spectacular day on Inauguration.
    But Metro is facing very serious problems. Yes, they do 
need money. They remind us about it continually. But I think 
that they need a more vigorous, aggressive form of management 
and they need to know their Federal Government is on their side 
in terms of a national framework for public safety.
    I am calling for really a sense of urgency, both by Metro 
and ourselves, because I want to tell you some shocking things 
just in the last year. In the last year, there have been 11 
deaths on Metro. Eleven people have died on Metro. In June, a 
Metro train struck another train during the evening rush hour. 
Eight passengers were killed, including one from Maryland, and 
also a Metro employee. Over 50 passengers were injured.
    Then in August, another Metro employee died, a track 
repairman. And guess what? He was hit by Metro maintenance 
equipment. We have trains owned and operated by Metro that are 
the cause of the problem. This wasn't a terrorist bomb on the 
tracks. This wasn't a drunk driver cutting in front of the 
train. This was Metro equipment that failed the people who were 
riding it and failed the people who were working on it.
    And in September, there was another employee death. A 
communication technician was killed, guess what, from injuries 
caused by being hit by a train. I wonder, what is Metro doing? 
And all the riders and the workers have gotten is lip service, 
a lip service commitment to having change.
    My observation of Metro management is they think that 
having a meeting about the problem is solving the problem 
rather than the kind of aggressive work that you do. There is a 
pattern of laxity, passivity, and lip service. I would hope 
that the Metro Board would take appropriate action. I can tell 
you this. The Metro leadership, as you know, wouldn't even let 
the inspectors from the three jurisdictions on the tracks. So 
we have got problems with Washington Metro, itself, and I don't 
want to have more meetings. I want to have more action.
    But guess what? We have let Metro down, too. I asked 
Secretary LaHood to investigate some of the Metro safety 
practices. But what is loud and clear is that we have not 
followed through on the National Transit Safety Board 
recommendations. I have met with the NTSB and said, what do we 
need to do? They went over recommendation by recommendation, 
going back in the last years since 2002 and 2006. They said 
that FTA has not taken any action on their recommendations. FTA 
says it doesn't have the authority, and even if they had the 
authority, they don't have the money. So, you know, we are 
passing rail cars. I mean, we need to act.
    So as you can see, I am really hot about this, and what I 
would like us to do is pass legislation that not only fixes 
Metro, but deals with the larger issues. My legislation is 
complementary to what the President is advocating and Secretary 
LaHood discussed with you today. My legislation is focused on 
the implementation of the National Transit Safety Board's 
recommendations. It would require the Secretary to implement 
the prior recommendations, particularly in emergency evacuation 
standards, the crashworthiness of their cars, and the data 
event requirements. These are NTSB's most wanted.
    You know, we have systems that regulate everything. We have 
Federal safety standards for buses and airplanes and even 
commuter rail, but not for subways. So one would be on crash 
worthiness standards for train cars. I think you would find 
interesting that there is no standards for the safety of these 
cars. So we need to be able to prevent the cars from 
telescoping in crashes. I don't want to go into ghoulish and 
grim details, but people died and were injured because the cars 
telescoped. The NTSB offered a recommendation in 2006. Nothing 
happened.
    Then we need to have data event recorders, just like we 
have on airplanes. They recommended it in 2002. Nothing 
happened.
    The other was emergency entry and evacuation standards for 
train cars. You know how you can get out of an airplane? You 
don't know how to get out of these cars. They recommended that 
they have car design standards to provide safe and rapid 
emergency ability to get out and for the first responders to 
get in. There are no standards in this area. NTSB reports that 
the FTA has delegated this to the American Public 
Transportation Association. Well, that is nice, but we have a 
job to do. I mean, I respect the American Public Transportation 
Association, but they can't be the ones to develop the 
standards. We need to develop them.
    Then last, but not at all least, is the hour of services so 
that train operators have 8 hours of uninterrupted sleep 
between shifts. This is almost like what we regulate for people 
who drive buses on interstate and also on airplanes.
    And also, we need to retire the older cars and replace them 
because they can't stand the shock.
    So, Mr. Chairman, I just want you to know, I am no novice 
with Metro and I am no Janie-come-lately. Working with the 
Congressional delegations across the Potomac, the Virginia 
Senators and their Members, Tom Davis, Frank Wolf, men known to 
you, Hoyer, Mikulski, Van Hollen, Sarbanes, now Cardin. We have 
worked together. We have gotten them the money. We have helped 
get them a dedicated revenue stream. When the omnibus passes 
over the next 72 hours, we are going to make a first 
installment of $150 million. We now will have the beginning 
downpayment on the money, but we now need fresh, aggressive 
management at the Metro and we need to have Federal standards 
for not only us, but for the Nation. And we look forward to 
working with you and the President's team on this.
    Mr. Chairman, that concludes my remarks.
    Chairman Menendez. Well, Senator, let me thank you for your 
leadership in this regard, your advocacy. I couldn't think of 
anybody better to be on our side in terms of making this happen 
than yourself, certainly from your perch in the Appropriations 
Committee, which is going to be an important part of this. So 
we thank you very, very much for your insights and for your 
leadership.
    I know I have no questions. Senator Reed.
    Senator Reed. No, I don't. I just want to thank the Senator 
for her great work and her great support, not only of transit 
in the metropolitan region, but transit all over the country 
and particularly in Rhode Island. Once again, you have taken 
the lead, so thank you very much.
    Senator Mikulski. Well, thank you. Senator Reed, I know you 
are also a leader on national security. But as you know with 
BRAC, we have moved so many facilities now to Fort Belvoir, 
they need the Metro. It is a national security issue in terms 
of safety and reliability.
    Senator Reed. And environmental protection and----
    Senator Mikulski. And environmental protection.
    Senator Reed. ----a long, long list.
    Senator Mikulski. Yes. Thank you.
    Senator Reed. Thank you.
    Chairman Menendez. Thank you, Senator. Thank you very much.
    As Senator Mikulski departs, let me call up our final 
panel.
    John Catoe is the General Manager for the Washington 
Metropolitan Transit Agency. Mr. Catoe has served as the 
Authority's General Manager since 2007, and before joining the 
Authority, he was the Deputy Chief Executive Officer for the 
Los Angeles County Metropolitan Transportation Authority. We 
welcome him today.
    Brian Cristy is the Director of the Transportation 
Oversight Division of the Massachusetts Department of Public 
Utilities, where he has been the Director there since 1992. In 
that position, he oversees State safety oversight of the 
Massachusetts Bay Transportation Authority.
    David Wise is the Director of the Physical Infrastructure 
Team at the U.S. Government Accountability Office. In that 
role, as the team director, Mr. Wise leads a team that 
specializes in assessing the U.S. Government's role in surface 
transportation. We appreciate their work.
    And finally, William Millar is the President of the 
American Public Transportation Association, which consists of 
over 1,500 member organizations across the United States, 
including numerous transit systems and rail operators. He has 
been before the Committee many times and we welcome him again 
for his expertise.
    Let me ask each witness to keep your statement to about 5 
minutes. Your full written statement will be included in the 
record, without any objection so that we can have time for 
questions.
    And with that, we will start off with you, Mr. Catoe. 
Welcome.

 STATEMENT OF JOHN B. CATOE, Jr., GENERAL MANAGER, WASHINGTON 
              METROPOLITAN AREA TRANSIT AUTHORITY

    Mr. Catoe. Thank you, Mr. Chairman, and thank you for the 
opportunity to testify before you today.
    Let me begin by reiterating a point I made when I testified 
here in August. Like many transit agencies, Metro needs to 
expand our system's capacity to meet future ridership growth. 
But like other agencies, we are struggling even to maintain 
what we have in a state of good repair because funding has not 
kept pace with the capital needs of our aging system. If not 
addressed, I believe this combination of increasing transit 
demand, aging infrastructure, and lack of sufficient funding 
will combine to form a perfect storm that will eventually 
undermine transit success.
    I reiterate this point today because safety and state of 
good repair are two sides of the same coin. The ability of 
transit agencies to continue to provide safe and reliable 
service depends on our ability to maintain our systems in a 
state of good repair. I encourage the Subcommittee to keep this 
in mind as you consider ways to improve safety at our Nation's 
transit systems.
    Before I talk about oversight, let me tell you about some 
of the things we are doing at Metro to improve safety. We 
continue to respond to the June 22 accident in several ways, 
including operating trains manually and developing software to 
alert us to track circuit problems on a real-time basis. We 
also have undertaken a number of other safety initiatives, 
including more worksite inspections, stricter hiring standards, 
and tougher disciplinary action for safety violations, such as 
cell phone use while operating a Metro vehicle.
    In addition, we have started and continue to expand 
additional training classes for all of our Metro employees, 
particularly those in the operations department. Also, I have 
taken a resource within the agency and reassigned our Chief of 
Police, a long-term transit safety professional, who previously 
worked with the Federal Transit Administration, to give new 
guidance to our overall safety program.
    Our internal efforts to ensure Metro's safety are overseen 
by the Tri-State Oversight Committee, known as the TOC. I think 
it is fair to say that Metro, TOC, and the witnesses here today 
all share the same basic goal: Effective oversight that results 
in a safe environment for transit riders and employees.
    To meet that goal, I believe the Federal Government should 
take a more active role to ensure consistency and quality of 
oversight across the country. In particular, I believe that 
effective oversight should include five key elements.
    First, an oversight agency must have full-time, trained, 
and experienced staff and sufficient funding to attract and to 
retain them. Let me also note that it is equally important for 
the transit agency itself to have sufficient resources, 
including staffing and training, for its internal safety 
programs.
    The second element of effective oversight of subway systems 
like Metro is a system safety focus, by which I mean that the 
oversight agency will not develop standards relating to 
individual components on rail cars without considering all the 
components and complications of the system in its entirety.
    Third, I strongly endorse the involvement of transit 
experts in the development of any safety standards. Transit 
professionals know technical requirements and operating 
conditions best because we operate it every day.
    Fourth, effective oversight requires meaningful enforcement 
authority. I encourage you to consider ways of ensuring 
compliance other than fines or withholding of funds, which 
would further reduce our already limited funding.
    Finally, I believe that the use of cost-benefit analysis 
for safety requirements would stimulate the development of 
realistic, workable solutions for safety issues. It is 
important to understand that almost every element of a subway 
system has a potential impact on safety. If transit systems 
have to rob Peter to pay Paul and defer needed capital 
investments to address new safety requirements, there is a 
potential to create new safety issues.
    Thank you again for giving me this opportunity to testify 
in front of this Committee and I look forward to answering any 
questions that you may have.
    Chairman Menendez. Thank you, Mr. Catoe.
    Before I introduce Mr. Wise, I am going to ask Senator Reed 
to chair for a while. I have been called to the Majority 
Leader's office for a meeting. I hope to get back, because I 
have read all your testimony, and then I have a series of 
questions. But Senator Reed, if you would chair at this point, 
I would appreciate it.
    Senator Reed [presiding]. Thank you very much, Mr. 
Chairman.
    Mr. Wise, please.

 STATEMENT OF DAVID J. WISE, DIRECTOR, PHYSICAL INFRASTRUCTURE 
             TEAM, GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. Wise. Chairman Menendez, Ranking Member Vitter, and 
Members of the Subcommittee, we appreciate the opportunity to 
provide testimony at this hearing on the mechanisms in place to 
oversee the safety of the Nation's rail transit systems.
    Rail transit moves more than seven million people in the 
United States daily and generally has been one of the safest 
forms of public transportation. As Department of Transportation 
Secretary LaHood noted in his December 8 testimony to the House 
Transportation and Infrastructure Committee, ``Rail transit, 
however, does have the potential for catastrophic accidents 
with multiple injuries, considerable property damage, and 
heightened public concern.''
    My statement today will cover two topics. First, the 
results of a report we issued in 2006 to the House T&I 
Committee which focused on the State Safety Oversight Program 
for rail transit. Second, our preliminary observations on DOT's 
proposal to change the agency's role in safety oversight.
    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 within 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.
    The State Safety Oversight Program generally covers rail 
transit systems that are not subject to Federal Railroad 
Administration oversight and receive New Starts or Urbanized 
Area Federal funds. These include systems such as fixed, light, 
heavy, or rapid rail, monorail, inclined plane, funicular, and 
trolley. As you know, under the program, State safety agencies 
oversee transit systems. FTA provides oversight of those State 
agencies.
    We found in 2006 that State oversight and transit agencies 
generally viewed the program positively. For example, some told 
us that the safety plans benefited transit agencies and that 
State safety oversight agency reviews had influenced the 
transit agencies' ability to make safety-related capital 
investments.
    Our report also found a number of challenges to the 
program's effectiveness. Funding challenges in State government 
limited the number of staff to a level that 14 of the 24 State 
oversight agencies that we contacted said were insufficient. 
Expertise varied significantly among the State agencies. Eleven 
had staff without expertise in rail safety. Nineteen State 
agencies had no enforcement authority if transit agencies did 
not follow their safety recommendations or violated standards. 
Ten State agencies relied on the transit agencies under their 
purview for a portion of their budgets, including reimbursement 
for oversight expenses. Finally, FTA had fallen behind its 
stated schedule to perform audits of the program every 3 years.
    To address these challenges, we recommended that FTA 
reinvigorate the program, establish a training curriculum, and 
provide funds to assist with travel for training. FTA has acted 
on these recommendations.
    Regarding DOT's proposal, it is likely to address the 
problem of staffing levels because it would require FTA 
certification of State programs and provide funds to the 
agencies. By providing FTA explicit enforcement authority, the 
proposal would also address the problem of States having no 
power to compel safety improvements by transit agencies.
    Finally, as stated by Secretary LaHood at the December 8 
T&I hearing, the new program is intended to ensure that a State 
agency is fully financially independent from the transit 
systems it oversees.
    In our view, there are also several issues for Congress to 
consider with regard to this proposal. First, is oversight and 
enforcement better accomplished at the State or Federal level? 
The answer may vary by State and by transit agency.
    Second, what enforcement tools would be appropriate given 
that transit systems need to serve their riders and they are 
typically funded by fares and taxes?
    Third, what will be the cost of this program and what 
should be the source of funds?
    Finally, what will be the challenges in Federal regulation 
of an enormously varied industry?
    Mr. Chairman, oversight of transit rail safety is a key 
Government function required to ensure a safe system and 
maintain the public's trust.
    This concludes my statement and I am happy to answer the 
Subcommittee's questions.
    Senator Reed. Thank you very much, Mr. Wise.
    Mr. Cristy, please.

 STATEMENT OF BRIAN CRISTY, DIRECTOR, TRANSPORTATION OVERSIGHT 
     DIVISION, MASSACHUSETTS DEPARTMENT OF PUBLIC UTILITIES

    Mr. Cristy. Chairman Menendez, Ranking Member Vitter, and 
distinguished Members of the Subcommittee, I thank you for the 
opportunity to discuss the roles and responsibilities of the 
Massachusetts Department of Public Utilities, which is the 
designated State Safety Oversight agency for the Massachusetts 
Bay Transportation Authority, and suggestions for improving the 
SSO program and rail transit safety on a national level.
    The MBTA, which is over 100 years old, is the fifth largest 
transit authority in the United States, and it provides service 
to over 1.3 million passengers per day. The Department's safety 
oversight of the MBTA was originally established in 1964, 
pursuant to the MBTA's enabling legislation. The Department 
instituted the SSO program in 1995, as mandated by 49 C.F.R. 
Part 659.
    The Department's safety-related oversight of the MBTA 
includes the ability to promulgate rules and regulations and 
issue administrative decisions that require corrective actions 
by the MBTA. For example, in January 1980, the Department 
mandated hours-of-service regulations for rail transit 
operators. In August of this year, following the May 2009 Green 
Line accident at Government Center in Boston, the Department 
became the first rail transit oversight agency to prohibit all 
MBTA train operators and bus operators from using a cell phone 
or having a cell phone in his or her possession while on duty.
    The success of the Department's safety-related oversight of 
the MBTA depends upon maintaining an open dialog and consistent 
line of communication with the MBTA on all safety-related 
issues. This includes around-the-clock access to MBTA property 
to conduct or participate in meetings, audits, training, and 
investigations. Further, the Department has direct access to 
the MBTA's general manager and other upper management 
officials, and it receives automatic electronic notification of 
any safety-related incident that takes place on the MBTA's 
property.
    The Department supports the Administration's proposal to 
establish Federal Transit Administration safety regulatory 
authority over fixed rail transit systems as this proposal will 
strengthen the existing SSO program. The proposal would cause 
the FTA to become a safety regulatory partner rather than an 
adviser.
    The Department, however, respectfully submits that 
enhancements to the SSO program including the following: one, a 
phase-in period of any new FTA requirements to allow States and 
transit systems sufficient time to meet new requirements and/or 
standards; a Federal venue for SSO agencies to seek fines for 
issues of noncompliance on the part of a transit system, and we 
believe these fines should be imposed by FTA on behalf of the 
SSO; and, three, additional training opportunities for the SSO 
community, together with a Federal requirement that transit 
system staff and management participate in training specific to 
this program, and to the extent possible require that the 
transit authority director of safety be a direct report to the 
general manager or transit system CEO.
    In addition, any Federal legislation should take into 
account the uniqueness of each transit system. For example, a 
new start will not have the same safety issues as a legacy 
property such as the MBTA.
    Finally, most critical to the success of any oversight 
program is funding, and there must be a source of funds 
identified and provided based on an agreed-upon formula and 
criteria. The funding should provide for staffing, training, 
certification, and for flexibility in hiring. For instance, an 
SSO may want to hire a consultant for a short-term project 
rather than a full-time staff person.
    In closing, the Department supports a strong rail transit 
system SSO program with new enhancements to allow the FTA to 
become a more active participant in the safety regulatory 
process. The Department submits that in order for any program 
to succeed, the local transit authority must be an equal 
partner with full support of the program coming from the top of 
the rail transit agency down to the operator level.
    Thank you for allowing me to testify this morning.
    Senator Reed. Thank you, Mr. Cristy.
    Mr. Millar, please.

    STATEMENT OF WILLIAM MILLAR, PRESIDENT, AMERICAN PUBLIC 
                   TRANSPORTATION ASSOCIATION

    Mr. Millar. Thank you, Senator Reed, and it is a pleasure 
to be back before this Committee and a great honor indeed. On 
behalf of the 1,500 members of the American Public 
Transportation Association, we do appreciate this opportunity.
    Public transportation systems in America are safe and well 
used. In 2008, Americans took a modern record of 10.7 billion 
trips on America's public transportation systems. This is 15 
times the number of trips that they took on the Nation's 
domestic airlines, and according to the U.S. Department of 
Transportation data, a person is many, many times safer as a 
passenger riding on rail transit than as a passenger riding in 
a motor vehicle.
    That said, things could always be made safer, and we 
commend this Subcommittee, Senator Mikulski, Secretary LaHood, 
Administrator Rogoff, and others who are working on this 
important aspect, this important need, and we are certainly 
looking forward to working with all of you as you develop 
various ideas.
    Now, APTA and the industry have worked for decades to 
improve safety. Indeed, the enviable safety record that the 
industry as a whole has is a result of these many decades of 
work. Through our safety activities for our members, our safety 
audit program, our peer review process, to name just a few 
things, APTA and its members have developed the expertise to 
continue to improve rail safety in America.
    We have been briefed on the proposal that Secretary LaHood 
outlined to you this morning, and we generally support these 
efforts in this specific proposal. We do have a number of 
concerns, which I outlined in my written testimony, and I would 
like to describe some three key points to you this morning.
    First, on the issue of standards, APTA has a highly 
technical and rigorous standards development process. We have 
developed more than 170 consensus standards to ensure safe 
operations, including 96 rail safety standards. For example, in 
the last 2 years, APTA has worked with the American Society of 
Mechanical Engineers to publish standards on crash-worthiness 
for new heavy-rail and new light-rail vehicles to ensure 
minimum safety in the event of a collision. Generally, our 
standards are performance-based, and we would strongly 
recommend that these standards, which have been partially 
funded by the Federal Transit Administration, be used in any 
new safety oversight program.
    Second is the issue of Federal preemption in this safety 
area. Recently, Secretary LaHood said that a passenger who uses 
rail transit in Chicago expects the same level of safety when 
he or she travels to San Francisco and boards a rail transit 
car there. We certainly agree with that, and the most effective 
method of achieving this goal is by adopting uniform national 
performance-based standards. We believe that uniformity and a 
national focus are essential elements of the performance to be 
achieved by applying safety standards. While we understand some 
State or local authorities may desire to raise the bar on some 
particular aspect of safety, to do so would ultimately detract 
from the overall effort. A standard created in one location 
would, through the threat of litigation, become a de facto 
national standard. This de facto standard would supplant the 
considered judgment of the Federal Transit Administration, 
informed by collective experience of the entire industry, and 
substitute a disjointed collection of highest bars driven by 
the courts.
    There is also a practical reason for this concern, and that 
is, there is a demonstratable need for uniformity of safety 
requirements in, for example, rail transit cars. This is a very 
small market. About 300 heavy-rail cars and about 70 light-rail 
cars are built each year for use in the U.S. market. Now, these 
cars could be built to specifications in accordance with a set 
of widely adopted industry consensus performance standards or 
federally adopted standards.
    If States were allowed to set differing rail car standards, 
the manufacturer would have to design, engineer, test, and 
build various versions of the same model. This is problematic 
for two reasons: one, the reengineering and redesigning to meet 
differing safety criteria extensively significantly increases 
the cost of the cars, and, again, these are funded in large 
measure with Federal taxpayer dollars, and may stifle 
competition by reducing the number of rail car manufacturers 
willing and able to big. This is an important topic with a lot 
of nuance, and over the coming weeks we do need to work 
carefully on this point.
    The third point I wish to make is the matter of funding. It 
will take many actions to improve transit's enviable safety 
record. It will also take significant financial investment to 
bring public transit systems up to a state of good repair, to 
increase the training of the men and women who work in our 
industry and are ultimately responsible for its safe operation, 
and to correct safety deficiencies that may be identified. If 
safety is to be taken to the so-called ``next level,'' 
investments must be made. It is not enough just to pass laws 
and issue regulations.
    Once again, Mr. Chairman, we appreciate the opportunity to 
be here. We commend you, the Subcommittee, Senator Mikulski, 
DOT, and especially FTA for opening this dialog on the safety 
issue, and we look forward to working together to improve rail 
safety across America.
    Senator Reed. Thank you very much, Mr. Millar, and you have 
been a great source of advice and counsel to this Committee 
when I was chairing it and when I was the Ranking Member, and 
so thank you for being with us today.
    Let me take up the point that you concluded with and ask 
both you and Mr. Wise, this funding issue--in fact, if anyone 
would like to join in, you could. This funding issue is 
absolutely critical. Authorizing is good. Appropriating is 
better in some respects. And we have a challenge here of both 
maintenance, training, and then safety supervision. And with 
limited resources, there is always a competition between those.
    Can you comment just about the general--how much we need on 
a notional value to do these things, to what extent investing 
in safety supervision is a higher rate of return than some of 
these other investments, training and maintenance? Mr. Millar, 
and then, Mr. Wise, if you have ever looked at this.
    Mr. Millar. Well, let me start with the very big picture. 
The American Association of State Highway and Transportation 
Officials, in their bottom-line report, says that we should be 
investing from all sources over $59 billion a year in public 
transportation to upgrade it to meet the increasing demand for 
it.
    With regard to safety, there can be no doubt, although the 
statistics are hard to come by, that a system that is not kept 
up to date, that is not able to apply the latest in safety 
technology, is, I think, commonsense-wise, not as safe as it 
could be.
    There is a great deal of focus on technology and on 
equipment, and that is very important when it comes to safety. 
But there is way much less focus, in my personal opinion, very 
little focus on the actual training and development of the 
expertise of the men and women who work in the industry.
    Also, while it is commendable that FTA wishes to increase 
its staffing in the safety area and it is commendable that they 
wish to increase the staffing in the State oversight agencies, 
the fact of the matter is there are not colleges and 
universities and community technical schools turning out these 
type of safety experts in public transportation.
    We have suggested--and I am happy to report the 
Administrator has said, ``Send me a paper on it.'' We have 
suggested that maybe some kind of joint program--maybe we could 
take advantage of the University Transportation Center Program. 
Maybe there are community college resources that could be put 
together with proper curriculum, building on the Oklahoma 
Safety Center work, the National Transit Institute in New 
Jersey work. There are a number of basic pieces of work done. 
We need to knit them together, scale them up so that the 
industry and those who would regulate the industry have the 
proper safety expertise to proceed.
    It is certainly in the tens of millions of dollars on just 
that training piece alone in addition to the overall work that 
needs to be done on the state of good repair.
    Senator Reed. Thank you.
    Mr. Wise, from your perspective, any sort of notion of 
these issues of overall cost or prioritizing training versus 
maintenance versus safety supervision?
    Mr. Wise. Well, we have not studied the overall costs for 
coming up with a system to address all these issues. But in 
2006, we did look at the training issue and made a 
recommendation to FTA that it needed to establish a training 
curriculum, and it has done that. And there has been a fair 
amount of activity in that direction toward getting an enhanced 
training regimen for the State safety officer. So that point I 
think is something positive.
    On the other point about the relative importance of the 
various components, I think there is no question that an 
integrated approach is required and that, as an example, 
clearly there is a nexus between an aging rail transit system 
and the issue of safety. As the system gets older, there are 
parts more prone to break and tracks become aged, and so as a 
result you do have implications for safety. If there are 
budgetary pressures and funds are moved from capital operating 
budgets, again, there is an impact, a potential impact on 
safety.
    Senator Reed. Let me just follow up quickly. In that 2006 
review of GAO, you made recommendations but you did not 
recommend a Federal Government takeover, as proposed in this 
legislation. Any comments on that? Did you consider it? Or did 
you explicitly exclude it to simply did not reach the issue?
    Mr. Wise. There are a couple of points to make there. We 
did consider the issue, but in 2006, I would say the 
environment in safety at that time was a bit different. At that 
point in time, there really was not any kind of movement in the 
Administration that favored the idea of trying to bring in a 
very robust Federal role toward safety oversight. So we tried 
to craft a recommendation to work within the existing system, 
and we felt that there were opportunities within the existing 
structure to improve and monitor the system with more limited 
changes and modest costs to the Federal Government.
    So what we are seeing today I think is a much different--
well, two things occurred, I think. One, there has been a 
number of incidents since 2006 that I think have heightened 
awareness toward strategy that have even occurred in the last 
10 or 12 months. And, second, there is a different perspective 
in this Administration toward the Federal regulatory role in 
rail transit safety.
    Senator Reed. Thank you very much.
    Mr. Catoe, you have a very challenging job. Anyone who 
drives in in the morning and listens to the radio knows that. 
And as the record indicates, this concern has been prompted by 
several different incidents all through the country. But one 
basic question is: Do you think this proposal, if enacted, 
would go a long way to precluding the accident that your system 
saw--and other systems, but I think you can only speak really 
to your system.
    Mr. Catoe. It will be a step in the right direction. As I 
mentioned in my testimony, there are many different actions we 
must take. One is the State oversight or Federal oversight to 
ensure consistency in safety programs throughout the United 
States.
    The other that has been mentioned is the need of keeping 
our system in a state of good repair. If you have 
infrastructure--or the example that we have in Washington with 
an older series of rail cars that need to be replaced and there 
is no funding to replace those, then your safety issues could 
still be there from an equipment standpoint.
    The third issue--and it will be a major one confronting 
transit systems this year, but we must confront it and take 
actions--is to move monies, operating dollars, to additional 
safety training. We have a safety training program, but it is 
clear that additional training is necessary, and that means 
shifting of funds that were set aside for operating will now go 
into additional training, which will impact the levels of 
operations.
    I think a combination of all of those actions will focus on 
reducing transit incidents here in Washington and around the 
country.
    Senator Reed. Thank you. Mr. Catoe, you indicated that one 
of the remedial steps that you have taken is to actually have 
manual operation of the trains.
    Mr. Catoe. Yes.
    Senator Reed. Which raises in my mind sort of the--I am old 
enough to think that the driver is always driving the train, 
but I guess that is not the case. But these computer systems 
were initially installed because they would have been sort of 
fail-safe, that they would have been much better than a manual 
operation. Now, ironically, you find that manual operation is a 
way to deal with your system's problem.
    Can you just comment on this whole issue of manual 
operation versus computers?
    Mr. Catoe. Yes, sir. The manual operation was instituted 
after the June 22nd accident here in Washington. As you are 
aware, the National Transportation Safety Board is conducting 
that investigation, and one of the interim recommendations that 
they made to us was to do increasing testing of the signaling 
system to make sure there are no malfunctions.
    Given that the absolute cause of that accident has not been 
communicated to us, but we know it is some type of signaling 
error that occurred in the automatic control system, we 
believe--and, again, that is not finalized--it is prudent to 
have our operators operate in manual mode and at the same time 
to run twice-daily tests to determine if there are any signal 
malfunctions.
    Now, we are in the process of testing a new system that 
will in real time detect any lack of signals or any improper 
signals being sent on the system, but that is in the testing 
stage, and we expect to have that system fully tested and ready 
to implement sometime during the next year.
    But manual mode is in place until we can determine all of 
the correct fixes to the cause of the accident.
    Senator Reed. I would think--and I am not an expert, but 
that seldom stops us from asking questions. I would think, 
though, that these systems, as they are deployed today, would 
have as a major feature basically indicating that there is 
something wrong, you know, that you would not find it out in an 
accident. Maybe Mr. Millar can help. Do most--and, again, the 
newest systems, I would assume. But do most systems, if there 
is any kind of uncertainty about the status of the system, 
basically start flashing red and you can switch to manual or 
you can--do you know?
    Mr. Millar. There is a saying in our business that if you 
have seen one transit system, you have seen one transit system. 
Each system is unique in its design. Some systems, particularly 
in the heavy-rail area, in the newer heavy-rail systems, very, 
very highly automated, very, very complex software and 
technology that drives the system, rarely two systems with 
exactly the same systems, though. And so each system has its 
own characteristics. No system is perfect. Each system has some 
different strengths, and they were designed that way for a 
couple reasons: one, the point in time where they were 
designed, the technology was whatever state it was at that 
point; and, two, the unique characteristics that were expected 
to be faced in that situation.
    After the NTSB put out its urgent request, and reinforced 
by FTA this summer after the WMATA accident, NTSB, FTA, many of 
the transit systems, as well as the private sector companies 
that have this expertise, have been meeting to try to see, both 
to help analyze what could be done with legacy systems, but 
also what could be done with future systems to make them safer. 
We believe that is the correct approach, and we strongly 
support what Mr. Catoe said, that until we know finally and for 
sure what the cause of this accident was, as well as others 
that the NTSB is looking into, we should not jump to 
conclusions. But there are good operational, prudent 
operational decisions that can be made, and we believe WMATA 
has made one of those prudent decisions.
    Senator Reed. Just a quick follow-up. I would presume that 
in the new Federal role that is proposed, either the Federal 
agency or the delegated authority to the State with Federal 
support would, as a minimum, certify these systems as being 
functional, and that would be something that would have to be 
done?
    Mr. Millar. Yes, I think we need to understand what would 
make sense in that area. The FTA proposal, as I understand it, 
calls for certifying the State agencies, for example. Once 
standards are agreed to, we expect that that certification 
would move on down the line.
    Senator Reed. Yes. There is a difference between certifying 
an agency and certifying a system.
    Mr. Millar. Yes, we agree.
    Senator Reed. There are a lot of certified agencies 
operating systems that are not that good.
    Mr. Cristy, thank you for joining us today. There is an 
issue here of sort of regional operations. MBTA operates into 
Rhode Island, a commuter rail. I am correct, I hope.
    Mr. Cristy. For the purposes of commuter rail, but that is 
separate from this program.
    Senator Reed. Right. I just want to clarify the lines here, 
that your understanding is that the commuter rails are still 
subject to other jurisdiction. This is not implicated. But just 
in general--and this might go to the whole panel--are there--I 
presume there are metropolitan systems that operate across 
State lines with transit. How do we sort of do this joint 
certification? Or is that something that is in the legislation 
and that you are comfortable with?
    Mr. Cristy. In the State of Massachusetts, the only system 
impacted by this Federal legislation, current and proposed, is 
the MBTA's rail fixed guideway system. The other 15 regional 
transit authorities in Massachusetts are bus only. The commuter 
rail is subject to FRA jurisdiction, and it does go into your 
State, yes.
    Senator Reed. Mr. Millar, do you have a point?
    Mr. Millar. Yes, there are several systems that do operate 
across State lines, and, of course, we will look forward to 
working with FTA on what is practical in that regard. But 
uniformity of regulation is something that our members hold as 
a very important value. They do not want to be--if they operate 
in two States, they do not want to be regulated one way in one 
State and a different way in the second State.
    Senator Reed. Right. And, Mr. Cristy, you have a bus system 
as well as a subway system as well as a commuter rail system. 
And as we talked with the Secretary and the Administrator, 
there is language at least which in the future might 
incorporate the bus system into this overall. Would you think 
from your perspective as an operator that would be a good 
approach, a bad approach? How should it be done?
    Mr. Cristy. Well, as the oversight agency in Massachusetts, 
we also have jurisdiction over the other 15 bus-only transit 
systems, and we do conduct safety oversight of those other 15 
transit bus systems now and have since the early 1960s with 
respect to bus safety as well.
    Senator Reed. Let me raise another question that I raised 
with the previous panel, and that is, the independence. You 
have an independent--I presume. You can for the record explain. 
You have an independent agency. You do not--MBTA does not pay 
your salary or anything else.
    Mr. Cristy. No, sir. It is the public utility commission.
    Senator Reed. Right.
    Mr. Cristy. So by nature they are independent regulatory 
agencies.
    Senator Reed. And you are self-funded?
    Mr. Cristy. We are a separate line item in the budget for 
the State budget, but have no relationship to the authority 
whatsoever.
    Senator Reed. And in terms of the ability to fund these 
operations, would you say it is robust or it lags behind other 
agencies--other responsibilities you have?
    Mr. Cristy. Well, that is one of the provisions of the 
proposal that most interests the Commonwealth of 
Massachusetts----
    Senator Reed. And the State of Rhode Island.
    Mr. Cristy. ----is that the possibility to obtain Federal 
funding which be greatly appreciated.
    Senator Reed. Well, gentlemen, if there is an issue that 
you want to raise, I thank you for your testimony, and it is 
perspectives of operators as well as the industry as well as 
the GAO, which has a very valuable and insightful voice on 
these matters. If there are no further comments, I want to 
thank you for your testimony.
    This will conclude the hearing on transit safety. I want to 
thank the witnesses for participating and helping the Committee 
learn more about this topic. The record will remain open for 1 
week to allow Senators a chance to follow up questions in 
writing. We ask that you please try to respond promptly.
    The hearing will now come to a close. Thank you very much, 
gentlemen.
    [Whereupon, at 11:03 a.m., the hearing was adjourned.]
    [Prepared statements, responses to written questions, and 
additional material supplied for the record follow:]

                    PREPARED STATEMENT OF RAY LaHOOD
                Secretary, Department of Transportation
                           December 10, 2009

    Chairman Menendez, Ranking Member Vitter, and Members of the 
Subcommittee: Let me thank you for inviting us to testify on the role 
of the Department, and more specifically, the role of the Federal 
Transit Administration (FTA), in overseeing the safety of our Nation's 
rail transit systems. With me today is Peter Rogoff, the FTA 
Administrator.
    Safety is my Department's highest priority. In hearings held in the 
House and Senate shortly after the tragic Washington Metro crash, FTA 
Administrator Rogoff testified that I had convened an expert working 
group within the Department to develop transit safety reforms, and that 
we would be sending those reforms to Congress. This week I have 
followed through on that promise by submitting, on behalf of the 
President, a transit safety bill as our first legislative proposal. I 
ask this Committee to consider it seriously and promptly.
Background
    As we address this issue, it must be remembered that traveling by 
rail transit in the United States remains an extraordinarily safe way 
to travel--far safer than traveling on our highways. Public transit 
moves millions of passengers to work, school, and home every day 
without incident. That fact makes it essential that our transit 
agencies maintain their infrastructure and equipment to a standard 
where they can provide riders with service that is reliable, 
comfortable and safe. Any safety-related concern that prompts commuters 
to abandon transit and get back into their cars is unacceptable.
    While rail transit is safe, the Administration believes we must 
take serious steps now to make it even safer and ensure that it remains 
safe. We are all aware that rail transit has the potential for 
catastrophic accidents with multiple injuries, considerable property 
damage, and heightened public concern. We all must focus our attention 
and resources on this important issue, if we are to maintain public 
confidence. Moreover, while transit remains a safe mode of travel, 
providing almost four billion passenger-trips a year, we see warning 
signs regarding the frequency of derailments, collisions, and passenger 
casualties--on which we must remain focused.
    In the past year, rail transit systems in Boston, San Francisco, 
and Washington, DC, experienced train-to-train collisions killing 9 
people, injuring 130 others, and resulting in millions of dollars in 
property damage. Also this year, three rail transit maintenance workers 
were struck and killed while working on the tracks.
    While these rail transit systems carry more passengers daily than 
either our domestic airlines, regulated by the Federal Aviation 
Administration (FAA), or our passenger and commuter railroads, 
regulated by the Federal Railroad Administration (FRA), they are also 
the only transportation mode within the Department of Transportation 
without comprehensive Federal safety regulation, oversight, and 
enforcement. Indeed, the Department of Transportation is prohibited by 
law from issuing regulations on the safety of rail transit systems.
    That means, at present, our Nation's rail transit systems operate 
under two very different Federal safety regimes. In 2008, rail transit 
system passengers made almost four billion trips. This is seven times 
the number of trips made on commuter rail, but only commuter rail 
passengers receive the benefit of robust safety oversight. For example, 
commuter rail systems that operate on the general railroad system of 
transportation (such as Maryland's Maryland Area Rail Commuter, 
Florida's Tri-Rail, and Washington State's Sounder) fall under FRA's 
safety regulatory system. FRA's aggressive safety program includes 
mandatory national safety standards and on-site spot inspections and 
audits by Federal technical specialists and inspectors with backgrounds 
in signal and train control, track performance, operating practices, 
and other disciplines. FRA is also empowered to prescribe safety 
regulations, issue emergency orders, and assess civil fines on this 
group of rail transit operators for any violations found.
    Conversely, the larger universe of transit trips on subway and 
light rail systems (such as the Washington Metropolitan Area 
Transportation Authority (WMATA), San Francisco's BART and MUNI 
systems, Atlanta's MARTA, Houston's METRO, Dallas's DART, Seattle's 
Link, Boston's MBTA, Chicago's CTA, and the New York City subway 
system) are not subject, as a general rule, to FRA oversight. Instead, 
those systems are covered under FTA's State Safety Oversight (SSO) 
program.
    Under the SSO program, Congress tasked States with the primary 
responsibility for establishing State safety oversight agencies 
(SSOAs). These SSOAs, in turn, were charged with ensuring that local 
transit systems create and implement their own safety programs. Under 
the existing SSO framework, however, each rail transit system is 
allowed to determine its own safety practices and the State reviews 
those safety practices. FTA lacks the statutory authority to establish 
meaningful minimum thresholds. As a result, we have a patchwork of 27 
separate State oversight programs. Each agency has only as much 
regulatory, oversight, and enforcement authority as it has been granted 
by its State government, and in many cases the oversight agency lacks 
the authority to compel compliance by or enforce standards on the rail 
transit system it oversees. The result is a regulatory framework of 
inconsistent practices, limited standards, and marginal effectiveness.
    Another problem with the current SSO program is that many States 
view it as an unfunded mandate. As a result, most States devote 
insufficient resources to the program. Nationwide, State staffing 
levels for each SSOA average less than 1.3 full-time equivalent 
employees (FTEs). That is less than 1.3 FTEs to carry out the agency's 
entire mission for the year. That number drops further when you remove 
from the calculation the staff associated with one large SSOA--the 
California Public Utilities Commission. When you look collectively at 
all the other SSOAs across the country, the average staffing level 
equals less than one full-time employee for each agency, and many of 
these employees have no career or educational background in transit 
safety. Most often, that one employee handles transit safety oversight 
for the entire State simply as a collateral duty. The lack of 
resources, the lack of authority, and the lack of financial 
independence, in some cases, mean that the vast majority of States 
implement the bare minimum when it comes to transit safety 
requirements. At the Federal level, we fare little better. FTA 
currently has only 2.5 FTEs dedicated to rail transit safety oversight. 
Furthermore, the lack of statutory authority to regulate the safety of 
public transportation has prevented FTA from considering a number of 
recommendations by the National Transportation Safety Board--
recommendations that followed accidents with fatalities and serious 
personal injuries. The Department views this status quo as inadequate 
and in need of urgent reform.
    In the wake of the WMATA tragedy in June, I instructed my Deputy 
Secretary, John Porcari, to convene a team of safety officials and 
experts to address this gap between the regulatory oversight for rail 
transit passengers and commuter rail passengers and develop options for 
transit safety reforms. The working group collaborated with other modal 
administrations within the Department with safety regulatory authority, 
including FRA, FAA, and the Federal Motor Carrier Safety Administration 
(FMCSA). They were also assisted in the analysis by the Research and 
Innovative Technology Administration. This team reviewed the many 
alternative models within DOT to address safety, as well as the 
statutory authorities on safety for transit and developed the 
legislative proposal described below. In addition, the working group 
and I met with Federal safety professionals and participated in 
outreach sessions involving the public, transit officials, labor union 
representatives, and State and local governmental officials. In the 
end, we concluded that without minimum national safety standards, 
programs intended to prevent major rail transit accidents will continue 
to be uneven, with no assurance that safety issues are adequately 
addressed.

Administration Proposal
    The Department's legislative proposal would do three things:
    First, it would require the Secretary of Transportation, acting 
through FTA, to establish and enforce minimum Federal safety standards 
for rail transit systems, other than those subject to regulation by 
FRA, that receive Federal transit funding. The legislation also 
provides the Secretary the option to establish a safety program for 
public transportation bus systems that receive Federal transit 
assistance.
    Second, the Secretary would establish a safety certification 
program whereby a State would be eligible for Federal transit 
assistance to carry out a Federally approved public transportation 
safety program. States would not be preempted from establishing 
additional or more stringent safety standards, if the standards meet 
certain criteria. States would receive training and staffing support 
from the Federal Government, as well as Federal certification to carry 
out enforcement activities on behalf of the FTA, similar to the Motor 
Carrier Safety Assistance Program in FMCSA. Where States choose to 
``opt out'' of enforcing the new Federal transit safety regime, then 
FTA would enforce Federal safety standards in those States.
    Third, the program would ensure that a State agency overseeing 
transit systems would be fully financially independent from the transit 
systems it oversees.
    Currently, there are SSOAs that receive their funding directly from 
the transit agencies they oversee. We find this situation presents a 
potential conflict of interest that is unacceptable. We do not allow it 
in any other mode of transportation. For example, we do not allow an 
airline to have control over how many Federal inspectors oversee their 
operations and how much those inspectors are paid. Similarly, we do not 
allow freight railroads to exert influence or control over the number 
of Federal railroad safety inspectors or their compensation. We need an 
identical guarantee of independence when it comes to transit safety 
oversight, and our legislative proposal would require such 
independence.
    Overall, we believe our legislative approach will restore public 
confidence in rail transit as being one of the safest modes of 
transportation, and it will go a long way toward ensuring that the 
Federal transit capital investments are adequately maintained and 
operated to meet basic safety standards. Furthermore, because the 
Department will be proactive in the setting of Federal safety 
thresholds, a reformed rail transit safety program will result in 
greater consistency and uniformity across all rail transit systems in 
the United States.
    In developing those Federal safety standards, FTA will benefit from 
the guidance and leadership of a new Federal advisory committee to 
specifically address rail transit safety. Using my existing authority 
under the Federal Advisory Committee Act, this week I presented to 
Congress formal notification establishing the Transit Rail Advisory 
Committee for Safety, or ``TRACS.'' This new advisory committee will be 
tasked with developing recommendations to present to the FTA 
Administrator in the area of rail transit safety. Where specific 
minimum safety standards are deemed appropriate, we will work with 
TRACS to first look at existing industry standards and best practices 
as the starting point. We are excited about the establishment of this 
Committee and we look forward to working with the rail transit 
industry, labor, and other expert stakeholders to develop appropriate 
national rail transit safety standards.
    We want to make clear that, in placing a rail transit safety 
responsibility in FTA, it is not our goal to simply replicate the FRA 
regulatory model, and bring it to bear on subways and light rail 
systems. To the contrary, our goal is to take a performance-based 
approach through the establishment of quality Safety Management Systems 
for each rail transit agency. We are not interested in creating 
voluminous and highly specific regulations. Instead, we are interested 
in each rail transit system actively identifying its greatest safety 
vulnerabilities through modern risk analysis and then taking the 
necessary actions to address those risks. Safety Management Systems are 
information-based iterative processes that the airlines are 
implementing successfully to address their greatest risks. Given that 
the rail transit universe is made up of transit operators that are 
unique in their technologies, ages, and operating environments, we 
believe that the establishment and expansion of Safety Management 
Systems is the more appropriate, affordable, and productive approach 
for rail transit.
    To reiterate, rail transit provides almost four billion passenger-
trips each year, and safely moves millions of people each day. However, 
as evidenced by the recent accidents and incidents, in order to 
maintain this level of safe performance, aggressive reform is needed in 
the existing Federal transit oversight authorities. We cannot rest on 
the laurels of a good safety record--especially as our transit 
infrastructure ages. We must take action to ensure consistency in the 
way rail transit safety oversight is addressed. As I stated earlier, 
``Safety is my Department's highest priority.'' I believe our 
legislative proposal presents a critical and necessary step to provide 
consistent oversight to help ensure safe operations for the transit 
workers and the traveling public.
    Again, thank you for the invitation to testify before your 
Committee. I look forward to working with this Committee as we enhance 
rail transit safety for the users of our Nation's public transportation 
systems.
    I welcome any questions you might have.
                                 ______
                                 
             PREPARED STATEMENT OF SENATOR BARBARA MIKULSKI

    Thank you, Chairman Menendez and Ranking Member Vitter, for your 
leadership in holding this hearing today and inviting me to testify on 
my metro safety bill. I recognize transit safety is a national problem, 
but I am here today to speak up for Washington Metro, which serves 
Maryland, DC, and Virginia and all the people in the Capital Region who 
rely on DC Metro to get to work, get to school and get around.
    Washington Metro is America's subway. Your constituents use Metro 
when they come to Washington. So what happens in our Nation's Capital 
has national ramifications. There is much to commend the day-to-day 
staff at Metro for: the worker bees who do all the operations, their 
fantastic job on the 9/11 evacuation and their great job on the 
inauguration. But Metro is facing very serious challenges--management, 
money and increased public safety. That's why I introduced the National 
Metro Safety Act.
    There have been 11 metro deaths this year. Let me repeat that: 11 
deaths in the past six months. In June, one Metro train struck another 
train during evening rush hour on Metro's busiest rail line. Eight 
passengers were killed, including one Marylander from Hyattsville and 
one Metro employee. Over 50 passengers were injured.
    In August, another Metro employee died. He was a track repairman 
from Silver Spring, Maryland, and he was hit by maintenance equipment. 
In September, there was yet another employee death. A communications 
technician was hit by a train and later died from his injuries. Metro 
has promised changes, but all we have gotten is lip service.
    Last month, I asked Secretary LaHood to investigate Metro's safety 
practices after reports that Metro was denying safety inspectors access 
to tracks. Metro cannot turn inspectors away or say when and where they 
can inspect the tracks. Why have inspectors then?
    I met with the National Transportation Safety Board (NTSB) 
immediately after the June crash with members of the National Capital 
Region Delegation. NTSB briefed us on the cause of the crash and their 
initial investigation findings. NTSB said it had recommended that the 
Federal Transit Authority (FTA) establish Federal safety standards but 
that FTA hadn't taken action. NTSB provided information on other 
previous recommendations it had issued to Washington Metro and FTA, all 
of which had been ignored.
    As you can see, I am really hot about this. I was shocked to learn 
Federal safety standards don't exist for metro systems. Even though we 
have Federal safety standards for buses, airplanes and commuter rail 
systems like MARC.
    That's why I introduced the National Metro Safety Act to begin this 
important discussion and give the U.S. Department of Transportation 
this authority. My bill gives Secretary LaHood the authority to 
develop, implement and enforce national safety standards by working 
with NTSB. It requires Secretary LaHood to implement the NTSB's prior 
recommendations that have fallen on deaf ears.
    These recommendations relate to crashworthiness. NTSB's most wanted 
are emergency entry and evacuation, data event recorders and train 
operator fatigue management procedures--the most important safety 
recommendations that must be implemented.
    Over the years, NTSB has made very sound recommendations for 
reform, which FTA has ignored. NTSB recommended that FTA develop 
minimum crashworthiness standards to prevent train cars from 
telescoping in crashes and establish a timetable for removing equipment 
that can't be modified to meet new safety standards. NTSB reports FTA 
has not implemented this recommendation. FTA has been slow to action 
and slow to take charge. FTA has been working with industry groups and 
the Federal Railroad Administration.
    NTSB recommended FTA develop car design standards to provide safe 
and rapid emergency responder entry and passenger evacuation like 
emergency window exits. NTSB reports FTA has delegated this 
responsibility to the American Public Transportation Association and 
standards are not yet completed.
    NTSB recommended that FTA require event records on cars. Old cars 
are not equipped with recorders. NTSB reports FTA washed its hands of 
this one. FTA responded it does not have the regulatory authority to 
establish this requirement. Why didn't FTA ask us?
    NTSB has also made recommendations for reform to DC Metro which 
have also been ignored. NTSB has recommended Metro either retire its 
oldest train cars or retrofit them with the most modern collision 
protection. NTSB reports Metro said it had no plans to overhaul the 
older cars and could not replace them until the end of 2014.
    I am not happy about Metro management. I have no confidence in 
Metro. Every time you turn around or turn a page there is another 
problem. There is a pattern of laxity, passivity and lip service. Metro 
leadership wouldn't let inspectors on the tracks. That's when I called 
for a Federal investigation.
    It was only last week that the head of safety was reorganized out. 
Safety responsibilities were concentrated in one place and now they are 
dispersed. Once again, we are lurching around: too little, too late and 
all coming to Congress to testify. There are severe management 
difficulties at Metro. I call upon Metro's board to take appropriate 
and immediate action.
    I am no novice with Metro. No Janie-come-lately. Money is a factor 
affecting Metro. As a member of the Appropriations Committee, I have 
tried to make sure Metro has funding. I have worked with Maryland 
Senators Sarbanes and Cardin. I worked with former Banking Chairman 
Sarbanes and Senator John Warner to complete the originally planned 
103-mile system and extend the Blue Line to Largo Town Center in Prince 
George's County.
    In 2008, I worked with Senator Ben Cardin to authorize dedicated 
funding for Metro, a total of $1.5 billion over 10 years. This year, I 
worked with Senator Patty Murray to get the first installment of these 
funds, $150 million, in the annual spending bill.
    Mr. Chairman, as you know, it is about money, but also management. 
We need strong management at Metro and at the Federal level. I want to 
work with you on a legislative framework that follows the 
recommendations of NTSB. These aren't my recommendations. We also need 
the right resources. That will make America's Subway, and subways all 
across America safe, reliable and sound. Thank you for inviting me to 
testify this morning.
                                 ______
                                 
                PREPARED STATEMENT OF JOHN B. CATOE, Jr.
    General Manager, Washington Metropolitan Area Transit Authority
                           December 10, 2009

    Mr. Chairman, Ranking Member Vitter, and Members of the 
Subcommittee, thank you for the opportunity to testify before you 
today. I am John Catoe, General Manager of the Washington Metropolitan 
Area Transit Authority, known as WMATA, or Metro. I last testified 
before this Subcommittee a few months ago on August 4, 2009. At that 
hearing, I discussed Metro's capital needs over the next 10 years and 
made several recommendations about ways that the Federal Government 
could help rail transit systems meet their infrastructure needs. In 
that testimony, I stressed that the ability of transit agencies to 
maintain aging infrastructure in a state of good repair has a direct 
impact on the safety and reliability of transit service. Today I will 
focus on the oversight of rail transit safety and Metro's experience 
with the Federal Transit Administration's (FTA) State Safety Oversight 
program.

Background on Metro
    Let me begin by providing some background on Metro. The agency was 
created in 1967 through an Interstate Compact agreed to by the 
Commonwealth of Virginia, the State of Maryland, and the District of 
Columbia, and approved by the Congress. Metro is the largest public 
transit provider in the Washington, DC, metropolitan area and the 
second largest subway, sixth largest bus system, and the eighth largest 
paratransit system nationally. Sometimes known as ``America's Transit 
System,'' Metro serves a population of over 3.5 million within a 1,500 
square-mile area, as well as visitors to our Nation's capital from 
across the country and around the world. Not only is the Metro system 
critical to the economic vitality of this region, it was created to 
serve the Federal Government and continues to do so. For example, 
nearly half of all Metrorail stations are located at Federal 
facilities, and Federal employees comprise about 40 percent of 
Metrorail's rush hour riders.
    During Metro's most recent fiscal year (July 1, 2008-June 30, 
2009), we provided on average 748,000 rail trips, 446,000 bus trips, 
and 7,000 paratransit trips every weekday. The Metrorail system 
operates a fleet of 1,100 rail cars on a 106-mile system with 86 
stations, and the Metrobus system operates a fleet of more than 1,500 
buses serving more than 12,000 bus stops along 340 routes in the 
District of Columbia, Maryland, and Virginia. But perhaps our greatest 
asset is our human capital. Every day, our employees--operators, 
mechanics, technicians, inspectors--come to work committed to providing 
safe and reliable service to thousands of customers.

A Changing Industry
    In many ways, moving people on transit today is much the same as it 
was 30 years ago. The focus of the station manager, vehicle operator, 
mechanic, or track inspector is the same. We support safe mobility in 
our communities today just as we did decades ago, by providing cost-
effective transportation to jobs, healthcare, education, Government 
services, shopping, and entertainment.
    Yet there have been changes over the last decade that make this 
period unique in the history of the public transportation industry. 
Today, people are using transit more than at any time since the 
Eisenhower Administration. Here in the Washington area, ridership on 
the Metrorail system has grown by 15 million annual passenger trips 
over the last 3 years--a 7 percent increase. Ridership on our other 
modes is growing as well: Metrobus has grown by 2 million annual 
passenger trips (a 2 percent increase), and MetroAccess ridership is up 
by 43 percent since FY2007. While we are currently seeing a decline in 
ridership growth as a result of the economic downturn, which we hope 
will be short-term, our growth rate in recent years has put us well 
above original expectations for the capacity of the system. The 
Metrorail system was designed in the late 1960s and early 1970s to 
carry 500,000 daily passengers. Today, we routinely provide nearly 
750,000 rail trips each day.
    At the same time, transit infrastructure across the country is 
aging, and existing capital resources have not kept pace with needs. As 
highlighted in the FTA's Rail Modernization Study earlier this year, 
there is a significant and growing backlog of investment needs among 
our Nation's major rail transit systems. These needs include repairing 
leaking tunnels and crumbling platforms, upgrading tracks and 
associated infrastructure, fixing escalators, replacing buses and rail 
cars at the end of their lifecycle, and updating critical software.
    The combination of increasing transit demand, aging infrastructure, 
and inadequate funding will combine to form a ``perfect storm'' that 
will undermine transit's success if we do not take steps to address 
them now. Both service and safety would suffer if our Nation's transit 
systems do not receive the resources needed to maintain a state of good 
repair. This Subcommittee's examination of these issues could not be 
more timely.

Safety Oversight at Metro
    As the Members of this Subcommittee are aware, on June 22 of this 
year, a collision of two Metrorail trains resulted in the loss of nine 
lives, including the operator of the striking train, and more than 70 
injuries. This was the worst accident in Metro's 30-year history, and 
we are cooperating fully with the National Transportation Safety Board 
(NTSB), the lead agency in the accident investigation. While it may be 
months before the NTSB issues a final report, we are not waiting for 
the final report before taking action to improve safety for our riders 
and employees. We have already taken a number of steps to ensure that 
the system is as safe as possible, including operating trains manually, 
increasing the frequency of our track circuit monitoring, and 
requesting an independent peer review of our entire track signaling 
system by a team of train signaling experts. We have also started 
testing the software that would alert us to circuit problems on a real-
time basis, per the NTSB's interim recommendation to all transit 
agencies in September.
    These efforts complement the wide range of initiatives, programs, 
and audits that Metro uses each day to enhance our system's safety. For 
example, we have increased the number and frequency of work-site 
inspections, including safety checks at all track maintenance work 
sites on all shifts. We have adopted stricter hiring standards and more 
stringent disciplinary actions for safety violations such as cell phone 
use while operating a Metro vehicle. We are working to provide 
refresher training to our front-line employees, and the Metro Transit 
Police Department has trained over 2,400 operations employees in 
emergency response, to provide better coordination between responding 
agencies to major service disruptions. Most recently, we began a pilot 
program of placing warning signals on station platforms to alert train 
operators of maintenance work at upcoming stations. We also conduct 
regular inspections and preventive maintenance on all systems and 
components of the Metro system--including tracks, vehicles, aerial 
structures (bridges), and stations--to ensure that they are as safe as 
possible.
    Our internal efforts to ensure the safety of the Metrorail system 
have been overseen since 1997 by the Tri-State Oversight Committee 
(TOC), which carries out FTA's State Safety Oversight program in our 
region. The TOC is composed of two members from each of Metro's Compact 
jurisdictions: the District of Columbia, State of Maryland, and 
Commonwealth of Virginia. The TOC is a partner in our efforts to 
maintain the highest levels of safety, and we have a strong, 
cooperative working relationship with the TOC.
    Metro interacts with the TOC in a variety of ways. In addition to 
monthly meetings, which also include FTA staff, Metro and TOC staff 
members meet every two weeks for detailed discussions on current 
issues. The TOC has reviewed and approved our System Security Plan 
(SSP) and System Safety Program Plan (SSPP), which outlines the policy, 
goals, elements, processes, and controls for maintaining system safety. 
Metro notifies the TOC of incidents that meet certain thresholds in 
terms of property damage or injury. In addition, Metro provides the TOC 
with a variety of information and reports regarding, for example, 
accident investigations, hazard management, emergency management, rules 
compliance, training and certification, and internal safety reviews, 
audits and inspections. Metro also works with the TOC to develop 
corrective action plans to improve safety at the agency. The TOC 
oversees Metro's annual review of our SSP and SSPP, and reviews and 
approves our internal safety and security audits. The TOC also 
completes extensive triennial reviews of our safety programs, with the 
next review scheduled for later this month.
    TOC is aware of our limited resources, and we work together to 
manage a set of corrective action plans that address many long-term 
issues, such as the need to replace more than a quarter of our 
Metrorail fleet, for upgrades to our electrical and software systems, 
and for additional employee training. Many of these issues require 
funding that we simply do not have. The FTA is also kept abreast of 
these funding challenges through its regular meetings with TOC and 
Metro, as well as the TOC and FTA triennial reviews.

Strengthening Transit Safety Oversight
    Let me turn now to the specific focus of this hearing--how to 
maintain the highest level of rail transit safety. While today's 
witnesses represent a variety of different perspectives, I believe that 
we all share the same basic goal: effective oversight that results in a 
safe environment for transit riders and employees. In order to meet 
that goal, I believe that the Federal Government should take a more 
active role than it does today, to ensure consistency and quality of 
oversight across the country.
    As you examine the current safety oversight program and consider 
ideas for its improvement, I would like to share what I believe would 
be the key characteristics of effective safety oversight for heavy rail 
transit based on my first-hand experience:

1. Full-Time, Trained, and Experienced Staff
    Safety oversight is not something that takes place only in periodic 
meetings or reviews. Effective oversight requires continuous monitoring 
and interaction with the transit agency. In order to carry out its 
function, the oversight agency must have a thorough knowledge of the 
systems, technology, infrastructure, and procedures at the transit 
agency. The effectiveness of an oversight agency is dependent on the 
quality of its staff. Funding must be made available to the oversight 
agency to attract and retain qualified, full-time staff. In a 2006 
report on the State Safety Oversight program, the Government 
Accountability Office identified the lack of sufficient staffing, and 
sufficiently qualified staff, as key weaknesses in the current 
oversight program.
    Let me also point out that it is equally important for the transit 
agency itself to have sufficient resources for its internal safety 
programs, including staffing and training. I cannot stress this enough. 
In this time of unprecedented budgetary challenges, transit agencies 
will have to make hard choices about how to use scarce dollars. 
Additional Federal investment in the ``human capital'' of transit 
agencies could significantly benefit our efforts to improve transit 
safety.

2. A ``System Safety'' Focus
    The current State Safety Oversight rule covers diverse forms of 
fixed guideway transit. Heavy rail systems (i.e., subways) such as 
Metrorail are unique in several ways from other rail transportation and 
even from other fixed guideway transit. They do not share tracks with 
other revenue vehicles (as commuter trains do with freight trains); 
they do not operate over grade-crossings (such as some light rail 
systems); and they do not operate on city streets (as do some light 
rail and trolley systems). Heavy rail subway systems are self-contained 
and operate using technology and equipment that is customized for each 
system, due to differences of geography, geology, climate, population/
ridership, and age of the system. Therefore, the focus of heavy rail 
safety oversight must continue to be on ``system safety,'' as it is in 
current System Safety Program Plans. Heavy rail transit vehicles 
operate in a closed, more controlled environment than vehicles which 
operate in ``mixed traffic.'' Safety is designed not only into the rail 
cars, but also into the other elements of the system, such as train 
control, power supply, communications, track access procedures, and 
intrusion protection. Therefore, I recommend that any standards or 
regulations relating to heavy rail transit be developed or adopted not 
as isolated elements, but as part of a system safety approach which 
considers how all of the components of a heavy rail system work 
together to ensure safe operation.

3. Involvement of Industry Experts
    I commend Secretary of Transportation LaHood for convening a 
meeting of stakeholders in August to discuss rail transit safety and 
for including transit industry leaders in that meeting. I also applaud 
the FTA for taking the initiative to establish the new Transit Rail 
Advisory Committee for Safety (TRACS), which I hope will be a vehicle 
through which FTA will take advantage of the wealth of real-world 
knowledge and expertise in the U.S. transit industry.
    In addition, I would urge Congress and the Administration to 
consider the national standards that already exist, and were developed 
by expert professionals with years of transit experience. Many of these 
standards have been or are being developed by the American Public 
Transportation Association (APTA) and cover a breadth of system safety 
elements such as operating practices, train operator hours of service, 
inspection and maintenance of vehicles, signals and communications, and 
fixed structures (such as yards, shops, stations, tracks, and 
electrical substations). APTA also collaborated with the American 
Society of Mechanical Engineers to develop a heavy rail crashworthiness 
standard--using the application of crash energy management--that is 
used by transit agencies around the country.
    Transit professionals know best the technical requirements and 
operating conditions of heavy rail transit. Their knowledge has already 
made, and will continue to make, significant contributions toward 
increasing the safety of transit systems.

4. Meaningful Enforcement Authority
    Effective regulation requires the ability to ensure compliance when 
the situation warrants. However, it is important to keep in mind that 
unlike other transportation providers like freight railroads and 
airlines, transit agencies are not profit-making entities. Any fines or 
withholding of funds would have to come not from profits, but from our 
limited pool of public funding, which, if depleted further, could 
actually have the unintended consequence of reducing system safety.
    I encourage the Congress and the Administration to consider 
alternative means of ensuring compliance. The Federal Government 
regulates or oversees numerous other industries and activities besides 
transportation, and I expect that a thorough review of compliance and 
enforcement mechanisms used by the various Federal agencies would yield 
some ideas that could be effective in the transit context without 
adversely impacting system safety.

5. Cost/Benefit Analysis for Safety Recommendations and Requirements
    As I noted earlier, one of the major challenges we face in 
implementing corrective actions identified by the TOC, or safety 
recommendations from other agencies, is lack of sufficient funding. 
Transit agencies' choices are constrained by available resources. One 
way to address this challenge is for the oversight entity to use cost/
benefit analysis to help develop workable solutions that can 
realistically be implemented by the transit agency.
    The FTA's Rail Modernization Study found that more than one-third 
of transit agencies' assets are either in marginal or poor condition. 
At Metro, we have identified more than $11 billion in capital needs 
over the next 10 years, the majority of which is needed to maintain the 
current bus, rail and paratransit systems in a state of good repair and 
to deliver safe and reliable service. Perhaps the most important idea I 
want to convey to you today is that rail transit safety is not limited 
to those issues that you read about in news reports. While it is easy 
to say that scarce transit funds should be spent first on safety, it is 
important to understand that almost every element of a rail transit 
system has a potential impact on system safety. If transit agencies 
have to ``rob Peter to pay Paul'' and defer maintenance or other needed 
capital investments to address safety recommendations or requirements, 
there is the potential to create new safety issues.
Conclusion
    I appreciate the Subcommittee's interest in the safety of public 
transportation. We at Metro take our responsibility for providing safe 
and reliable transportation very seriously, and we would welcome 
additional oversight to help us achieve that goal. In particular, I 
strongly urge the Congress to make sure that additional oversight comes 
with the funding to make sure that it is effective. In addition, I urge 
you to provide a higher level of investment in rail infrastructure to 
ensure that transit agencies across the country can maintain our 
systems to a level that allows us to provide the safest and most 
reliable service. Thank you for the opportunity to testify today, and I 
look forward to answering any questions you may have.
                                 ______
                                 
                  PREPARED STATEMENT OF DAVID J. WISE
  Director, Physical Infrastructure Issues, Government Accountability 
                                 Office
                           December 10, 2009

































                   PREPARED STATEMENT OF BRIAN CRISTY
 Director, Transportation Oversight Division, Massachusetts Department 
                          of Public Utilities
                           December 10, 2009

    Chairman Menendez, Ranking Member Vitter, and distinguished Members 
of the Subcommittee, my name is Brian Cristy and I am the director of 
the Transportation Oversight Division of the Massachusetts Department 
of Public Utilities (Department). I thank you for the opportunity to 
discuss the role and responsibilities of the Department as a State 
Safety Oversight (SSO) agency and suggestions for improving the SSO 
program and rail transit safety on a national level.
Introduction
    The Department is the designated SSO agency for the Massachusetts 
Bay Transportation Authority (MBTA), the Commonwealth's fixed rail 
system. The MBTA, which is over 100 years old, is the fifth largest 
transit authority in the United States, and it provides service to over 
1.3 million passengers per day. The Department's safety oversight of 
the MBTA was established in 1964, pursuant to M.G.L. c. 161A, 3(i) 
(See, also, Intermodal Surface Transportation Efficiency Act of 1991, 
Pub. L. No. 102-40, 49 U.S.C. Section 5330; 49 C.F.R. Part 659). The 
Department instituted the SSO program in 1995.
The Department's Role as SSO Agency
    The Department's safety-related oversight of the MBTA includes the 
ability to promulgate rules and regulations and issue administrative 
decisions that require corrective actions by the MBTA. For example, in 
January 1980, the Department was the first oversight agency to mandate 
hours-of-service regulations for rail transit operators. Further, 
following several derailments of the MBTA's Green Line No. 8 low-floor 
vehicle (No. 8 Car) in 1999 and 2001, and the investigation that 
followed, the Department ordered the MBTA to prepare a Corrective 
Action Plan (CAP) that would, among other things, address the adequacy 
of the wheel-rail interface for the No. 8 Car's center truck to prevent 
future derailments. With the approval of the Department in March 2003, 
the MBTA began a gradual reintroduction of the No. 8 Car. In addition, 
in August 2009, the Department became the first rail transit oversight 
agency to prohibit all MBTA train and bus operators from using a cell 
phone or having a cell phone in his or her possession while on duty.
    The success of the Department's safety-related oversight of the 
MBTA depends upon maintaining an open dialogue and consistent line of 
communication with the MBTA on all safety-related issues. This includes 
around-the-clock access to MBTA property (including computer databases) 
to conduct or participate in meetings, audits, training, and 
investigations. Further, the Department has direct access to the MBTA's 
general manager and other upper management officials, and it receives 
automatic electronic notification of any safety-related incident that 
takes place on the MBTA's property. In addition, the Department 
communicates directly with the MBTA concerning the SSO program by 
providing mandatory training to MBTA upper management that is 
specifically related to the program.
    In an effort to further promote an efficient oversight program, the 
Department coordinates various oversight activities with the MBTA's 
safety department. Such protocol is designed to ensure that the safety 
department is an active participant in any corrective measures, and it 
provides an opportunity for the MBTA to enhance safety internally. For 
example, the Department and the MBTA jointly conduct mandatory 
quarterly meetings, cochaired by the Department's oversight manager and 
the MBTA's safety director, to discuss and formulate action on a number 
of safety issues. From these meetings, investigations, and analyses of 
hazards, evolve the aforementioned CAPs designed to reduce or eliminate 
the identified hazards. The Department is required by the current 
Federal program to accept or reject all CAPs submitted by the MBTA, and 
the Department tracks the CAPs to completion. This function is unique 
to local oversight given that CAPs are tracked in ``real time,'' 
something that may not be practical at the Federal level. It should be 
noted that CAPs often take weeks, months, or even years to fully 
implement.

The Proposed Legislation
    The Department supports the Administration's proposal to establish 
Federal Transit Administration (FTA) safety regulatory authority over 
fixed rail transit systems, as this proposal will strengthen the 
existing SSO program. The Department, however, respectfully submits 
that enhancements to the SSO program are necessary and should include 
the following: (1) a phase-in period for any new FTA requirements to 
allow States and transit systems sufficient time to meet new 
requirements and/or standards; (2) a Federal venue for SSO agencies to 
seek fines for issues of noncompliance on the part of a transit system 
(these fines should be imposed by FTA on behalf of the SSO); (3) 
additional training opportunities for the SSO community, together with 
a Federal requirement that transit system staff and management 
participate in training specific to this program and to the extent 
possible; (4) a requirement that the transit authority director of 
safety be a direct report to the general manager or transit system CEO; 
and (5) the continued emphasis on communication and cooperation between 
the oversight agency and the transit authority.
    The Department submits that problems associated with the existing 
oversight program should be identified and ``designed out.'' For 
example, SSO agencies should have access to transit system property and 
records related to the oversight function, as this is critical to 
promoting local relationships and partnerships that traditionally may 
not have been practical at the Federal level. Further, the Department 
suggests that the CAP process can be improved. For instance, a limit 
should be imposed on the number of extensions requests a transit 
authority can seek before submitting to the oversight agency a final 
report regarding the cause of the accident or incident. Ultimately, 
this would reduce the length of the CAP review process and expedite the 
approval of corrective action measures to be taken by the transit 
authority.
    In addition, any Federal legislation should take into account the 
uniqueness of each transit system. For example, a new start will not 
have the same safety issues as a legacy property such as the MBTA, 
which is over 100 years old. Finally, most critical to the success of 
any oversight program is funding, and there must be a source of funds 
identified and provided based on an agreed-upon formula and criteria 
that would apply to both the SSO community and rail transit systems. 
The funding should provide for staffing, training, certifications, and 
for flexibility in hiring. For instance, an SSO may want to hire a 
consultant for a short term project rather than hire a staff person.

Conclusion
    The Department supports a strong rail transit system SSO program 
with new enhancements to allow the FTA to become a more active 
participant in the safety regulatory process. The Department submits 
that in order for any program to succeed, the local transit authority 
must be an equal partner with full support of the program coming from 
the top of the rail transit agency down to the operator level. A 
revised oversight program must also include a dedicated funding source 
with realistic performance measurements. With the considerations 
outlined above, the Department submits that a revised oversight program 
will result in a more balanced program and, therefore, a safer public 
transit system.
    Thank you for the opportunity to provide this testimony on behalf 
of the Massachusetts Department of Public Utilities.
                                 ______
                                 
                  PREPARED STATEMENT OF WILLIAM MILLAR
         President, American Public Transportation Association
                           December 10, 2009

Introduction
    Chairman Menendez, Ranking Member Vitter, and Members of the 
Housing, Transportation and Community Development Subcommittee, on 
behalf of the American Public Transportation Association (APTA) and its 
more than 1,500 member organizations, I thank you for the opportunity 
to testify today as your Subcommittee seeks to examine the role of the 
Federal Government in the ongoing effort to maintain safe public 
transportation operations.
    Public transportation systems in America are safe and well used. In 
2008, Americans took a modern record 10.7 billion trips on public 
transportation, 15 times the number of trips taken on domestic 
airlines. Each weekday, public transportation vehicles are boarded 35 
million times. According to the Federal Transit Administration (FTA), 
from the period of 2003 to 2008, heavy rail passenger fatalities 
dropped by 50 percent and there were zero light rail passenger 
fatalities. As well, according to the FTA, this means a person is at 
least 142 times less likely to die as a passenger on rail transit 
rather than as a passenger in an automobile.
    Achieving the highest levels of safety for riders, employees, and 
the public remains our number one goal. APTA and our industry continue 
to develop and promote wide ranging safety standards, conduct safety 
audits, convene working groups to address implications of new 
technologies on system safety, while meeting higher ridership demands, 
and dealing with aging infrastructure and procurement complications 
associated with building state of the art transit systems. 
Unfortunately, despite the industry's unyielding commitment to safety, 
accidents do sometimes happen. As we meet here today to discuss the 
possible expansion of the Federal role in public transit safety and 
potential legislative proposals, I hope to provide you with a better 
understanding of what our industry is already doing to increase safety 
and to ensure that public transportation continues to be, by far, the 
safest mode of surface transportation in the Nation.
    While it will take many steps to improve transit's enviable safety 
record, it will also take significant financial investment to bring 
public transportation systems up to a state of good repair, to increase 
the training of transit employees, and to correct safety deficiencies 
identified. It is simply not enough to pass laws and issue regulations, 
if safety is to be taken to the next level, investments must be made.

About APTA
    The American Public Transportation Association is a nonprofit 
international association of more than 1,500 public and private member 
organizations, including transit systems and high-speed, intercity and 
commuter rail operators; planning, design, construction, and finance 
firms; product and service providers; academic institutions; transit 
associations and State departments of transportation. APTA members 
serve the public interest by providing safe, efficient, and economical 
transit services and products. More than 90 percent of the people using 
public transportation in the United States and Canada are served by 
APTA member systems.

APTA Safety Programs
    The American Public Transportation Association has been designated 
as the standards development organization for public transportation. 
For more than 20 years, APTA has partnered with the U.S. transit 
industry, the FTA, and its predecessor the Urban Mass Transit 
Administration (UMTA), to develop standardized programs for safe, 
efficient, and secure transit operations. APTA has also developed and 
continues to manage a number of safety specific programs that provide 
safety audits for transit operators on a triennial basis and other 
services. In the early 1970s, APTA members began applying to new rail 
transportation systems the concepts of a safety system first developed 
by the military and the National Aeronautics and Space Administration 
(NASA). In collaboration with UMTA and the U.S. Department of 
Transportation's (DOT) Volpe Center in Cambridge, Massachusetts, APTA 
developed a Safety Management Program and published its guidance 
document, commonly referred to as the APTA Manual, on how to create a 
System Safety Program Plan. In 1987, APTA developed a companion 
industry audit program, based on the Manual, as a voluntary program for 
rail transit agencies to measure their progress and to help develop 
benchmarking of effective practices. This program, which was later 
expanded to include commuter rail and bus services, serves the purpose 
of being a developmental, self correcting safety process that 
emphasizes continuous improvement toward the goal of safety excellence. 
This program also served as the basis for the existing FTA State Safety 
Oversight (SSO) program, found at 49 CFR Part 659, and has been 
incorporated by reference in the Transport Canada Safety Management 
Systems regulation as well. Since its inception as a voluntary program, 
our independent audits have been conducted at 75 APTA member transit 
agencies, with over 415 audits completed during the last 20 years.
    The APTA Safety Management program along with its audit component 
has been used effectively by transit agencies to locate weaknesses in 
their operations and to demonstrate their diligence to safety and 
security, it has even been used as evidence to insurance carriers to 
justify lower premiums. In addition, the program has provided a forum 
for the exchange of effective safety and security practices, spurred 
the development of tools and resources to the industry, and gave rise 
to a national and international methodology for assessing operating 
risks. The audit program incorporates the APTA standards into the 
elements whenever there are standards that address safety critical 
areas. The external audit concept has also created the concept of the 
APTA Peer Review program which is a targeted audit process drawing from 
industry subject matter experts to assist transit agencies in dealing 
with specialized program areas. To date, over 110 Peer Reviews have 
been performed for agencies seeking help with problematic areas of 
their operations. APTA's safety programs are recognized internationally 
in North America, Europe, and Asia and are designed to examine every 
area of transit planning, construction, acquisition, operations, 
security, emergency preparedness, and maintenance to ensure the safety 
of our public transportation passengers and employees.

APTA Rail Transit Safety Standards Program
    Congress is currently considering legislative proposals to assign 
statutory responsibility to the FTA for developing mandatory Federal 
bus and rail transit safety regulations. On behalf of APTA and its 
members, who have provided unmatched access to subject matter experts 
volunteering countless hours over 20 years to promote safety for all 
passengers and employees, I ask Congress and the FTA to build on our 
existing safety standards program to serve as the backbone of this 
initiative.
    APTA's commitment to safety is the basis of our Standards 
Development Program. Initiated in 1996, APTA is continually developing 
standards in the areas of rail transit, commuter rail, bus operations, 
procurement, intelligent communications interface protocols, and 
security. We are an officially accredited Standards Development 
Organization (SDO), recognized by the U.S. Department of Transportation 
and partially funded through grants provided by the FTA. Since Fiscal 
Year 2007, the FTA has provided $3 million in grant funding to APTA to 
develop standards for the public transportation industry, in addition 
to more than $3 million from members who have provided access to 2,000 
subject matter experts volunteering tens of thousands of hours to 
develop this program. We develop standards using formal methods 
patterned after the process required by the American National Standards 
Institute (ANSI). This multifaceted approach includes:

    a balanced representation of interested parties

    a required public comment period

    a formal process to respond to comments

    the availability of an appeals process

    a balloting group broadly representative of the industry

    consensus as defined as a super majority of the balloting 
        group

    and a formal method to respond to requests for 
        interpretation of or changes to the standard

    Partnering with other SDOs, including the American Society of 
Mechanical Engineers (ASME), the Institute of Electrical and 
Electronics Engineers (IEEE) and the American Rail Engineering and 
Maintenance of Way Association (AREMA), as well as a wide range of 
experts in the fields of transit system operation, car manufacturers, 
vehicle operations management, technical consultants, safety 
professionals and Government representatives, APTA has created and 
implemented nearly 170 consensus based standards that promote safe and 
efficient transit system operations. Our robust standards programs have 
been designed to guarantee that reviews are conducted on an ongoing 
basis and provide the flexibility to make updates and amendments as new 
issues and technologies arise.
    Particularly relevant to the topic of the hearing today is APTA's 
collaborative efforts on the ASME Rail Transit 1 and Rail Transit 2 
standards, commonly referred to as RT-1 and RT-2. RT-1 applies to the 
carbody of newly constructed light-rail transit vehicles, and RT-2 
applies to the carbody of heavy rail transit vehicles. Neither standard 
covers vehicles that fall under the jurisdiction of the Federal 
Railroad Administration (FRA). The focus of this program, which was 
initiated in 1998, is to support industry efforts to write structural 
standards for rail transit vehicles. According to ASME, RT-2 
specifically ``defines requirements for the incorporation of passive 
safety design concepts related to the performance of the carbody of 
heavy rail transit vehicles in conditions such as collisions, so as to 
enhance passenger safety, and limit and control damage.'' Published in 
2008, this standard highlights the industry's commitment to ensuring 
the highest level of passenger safety is achieved in the event of an 
impact.
    Several weeks ago, APTA hosted a 2-day meeting of the ASME Rail 
Transit Standards Committee to reexamine the RT-2 Standard to 
specifically address the possible inclusion of enhancements that may 
become necessary to further address over-ride protection in the event 
of a high-speed impact. Collaborative industry partnerships built upon 
long-standing relationships allow us to convene meetings of our 
standards setting committees to ensure our program is relevant and can 
quickly address safety issues as they arise. Similarly, in response to 
multiple incidents resulting from distracted drivers, APTA is in the 
process of finalizing safety standards for transit agencies regarding 
this issue.
    Congress has previously recognized the importance of promoting 
these voluntary industry-based standards to create uniformity within 
the legal and regulatory structure of the United States. The National 
Technology Transfer and Advancement Act of 1995 (P.L. 104-113) 
encourages Government agencies to work together with industry leaders 
to develop private, voluntary safety standards for Federal grantees. 
APTA has met this directive by working together with the FTA, the FRA 
and other Federal agencies, public transit systems, academics, and a 
variety of outside experts to develop a wide-range of industry safety 
standards.
    There are many tangible benefits of the APTA program in particular, 
such as:

    improving safety of operations and services

    reducing operating and maintenance costs

    creating a process where transit systems share best 
        practices

    increasing and improving transit system/supplier 
        communication

    making development of procurement specifications easier and 
        less costly

    making legal defense more effective in liability cases

    helping States establish and improve safety oversight 
        programs

    providing much needed guidance to new start transit systems

    creating opportunities for reliability and efficiency 
        improvements

    decreasing training costs

State Safety Oversight Program
    Pursuant to the Intermodal Surface Transportation Efficiency Act of 
1991, better known as ISTEA (P.L. 102-240), the FTA was directed by 
Congress to establish a State Safety Oversight program that would be 
created and managed by the States. Effective since 1997, States are 
mandated to establish State Oversight Agencies (SOA) that design and 
implement safety oversight and audit programs for the light-rail and 
subway systems within their jurisdiction. Understanding that each 
transit agency has its own unique characteristics, the FTA wisely opted 
against a ``one-size-fits-all'' approach and instead sought to create 
an SSO program flexible enough to take into account these distinctions. 
State Oversight Agencies were tasked with creating their own standards 
and then measuring the compliance of each transit agency through 
audits. Currently there are 26 State Oversight Agencies that oversee 48 
rail transit systems.
    States with larger transit systems such as California, 
Pennsylvania, and New York have taken proactive approaches and 
instituted statewide regulatory procedures, while others States with 
perhaps a small single transit system have opted to allocate less 
resources and less stringent guidelines. This has resulted in widely 
disparate funding and staffing levels, as well as varied staff 
capabilities, that in some cases may be inadequate to fully address 
safety concerns. A 2006 report by the U.S. Government Accountability 
Office (GAO) on rail transit issues revealed that in interviews with 
representatives from 24 oversight agencies, 16 officials indicated that 
they lack adequate numbers of qualified staff. \1\
---------------------------------------------------------------------------
     \1\ U.S. Government Accountability Office, Rail Transit: 
Additional Federal Leadership Would Enhance FTSA's State Safety 
Oversight Program, GAO-06-821. July 2006, Summary.
---------------------------------------------------------------------------
    APTA believes the current SSO program is uneven in its 
effectiveness and varies greatly from one State Oversight Agency to the 
next. Therefore, we suggest the FTA, in concert with all stakeholders, 
identify the SSO programs that do work and use those programs to 
develop a Federal template for requirements to which each State 
Oversight Agency must adhere. Further, in order for an SSO program to 
be successful, there must be adequate and consistent staffing levels 
and training, and uniform standards for monitoring and auditing that 
are flexible enough to integrate new and emerging technologies.
    To further improve the existing SSO program, there is also a 
critical need to strengthen oversight of the program at the Federal 
level. We recommend restructuring the FTA Office of Safety and 
Security, which currently manages the SSO program by significantly 
expanding their program personnel and in-house expertise to properly 
develop, implement and manage an effective oversight program.
    We believe the Administration is generally on the right track in 
its proposal to enhance the State Safety Oversight structure, though a 
small number of our members would prefer to eliminate the SOAs and 
instead have the FTA conduct the program. With proper authority, 
sufficient funding, training, and personnel, we believe SSO agencies 
can effectively manage and enforce rail transit safety regulations.

Additional Considerations
    To achieve the goals of the proposed legislation, the role of the 
Federal Transit Administration must evolve from acting solely as a 
grant-making agency. A clear mandate from Congress which provides the 
FTA with not only the authority to run a Federal rail transit safety 
standards and management program, but also the ability to provide 
enforcement capabilities ensuring compliance with such programs is 
necessary. To this end, if safety standards for rail transit systems 
are to be established by Federal regulation, I urge the FTA to consider 
adopting the practice of using consensus-based industry standards as 
the foundation, as supported by the Technology Transfer Act, and where 
appropriate, incorporating pertinent voluntary standards by reference 
into regulation. APTA has provided to the staff of this Subcommittee a 
list of existing voluntary standards, and those in development, that we 
suggest the FTA should consider for initial incorporation into 
regulation. The industry has made significant investments, along with 
the FTA, to develop these standards. It only seems logical to build off 
of the hard work and expertise that has gone into their development 
instead of pioneering an entirely new standards program. The ultimate 
goal must be to build a Federal program that, when properly 
administered, produces an improved level of safety than is currently 
the case.
    Where feasible, standards should be performance-based rather than 
prescriptive to accommodate local conditions and diverse operations, as 
well as to foster innovation in technology and problem-solving. We must 
also consider whether or not this new program must fit into the local, 
State, and regional criteria put forth by local planning agencies. 
Additionally, any Federal program should incorporate a Federal 
preemption to ensure that efforts at the State level remain 
concentrated on identified national safety priorities. In creating a 
coordinated Federal approach for a standards program, the FTA should 
provide the fundamental safety principles from which States can use 
different methodologies to create programs that meet the specific needs 
of their unique transit system. Once a Federal transit safety standards 
program is established, State safety oversight agencies should 
consistently enforce the Federal standards as well as provide necessary 
technical assistance based on their training and specialized 
understanding of an individual transit system.
    To fully support the adoption and implementation of these programs, 
it will become necessary for Congress to provide enforcement 
capabilities to the Federal Transit Administration to ensure 
compliance. Such authority should be vested in the form of ``grant 
conditions,'' meaning that the FTA has the ability to direct grant 
funding to be used to correct major inadequacies and significant 
incidences of noncompliance that will effectively improve safety. It 
goes without saying that leveraging monetary penalties, including 
fines, as an enforcement tool would be counterproductive as transit 
agencies are public entities funded by fares riders pay and taxpayer 
dollars. We suggest establishing a timetable to allow systems to be 
brought into compliance without penalty and incorporating a progressive 
ratings system whereby instances of noncompliance are evaluated based 
on risk and/or necessity. To this end, an appeals process must be 
instituted to ensure fairness in the dispensation of violations.
    Transforming the safety mission of the FTA is a goal that will 
require new funding and staff. APTA fully supports providing the FTA 
with new funding to ensure there are adequate personnel and subject 
matter experts on staff at the Federal level. Funding will also be 
required to ensure SSAs are adequately staffed and properly trained to 
carry out the critical functions of an oversight agency, and proper 
funding for transit agencies will also be required to succeed in 
improving safety.
    To meet the new staffing levels required an immediate problem will 
be encountered: A significant shortage of trained safety personnel who 
understand the public transportation industry. Congress should provide 
funding to create a national FTA rail transit safety standards 
certification program. Although related programs for this do exist, the 
training is neither standard nor does it result in recognized 
certification. In order to expand the workforce of properly trained 
rail transit safety professionals, a program with a standardized 
national curriculum must be established. APTA would welcome the 
opportunity to work with the FTA to determine core safety competencies 
required for effective safety management at all levels, to implement 
such a program.
    There is also a critical need for an improved and reliable national 
transit operations database that agencies and other industry 
practitioners can use to benchmark their operating performance, 
including trends in safety. Federal safety priorities must also address 
the delivery of adequate resources to support and sustain research to 
close gaps in the body of knowledge to enhance safe transit operations.

Conclusion
    The Nation's 48 rail transit operations are safe and their 
customers should utilize them without hesitation, but safety can always 
be improved. Day in and day out we hold ourselves to the highest degree 
of accountability to ensure safe transit for all passengers and will 
continue to do so. Through ongoing partnership, collaboration and 
communication we have been able to create standards that provide an 
inherently safe mode of transportation. If it is the will of Congress 
to federalize these standards, one can expect the same level of 
dedication and commitment to safe passenger transit from our agencies 
across the country. APTA commends the Department of Transportation and 
the FTA for opening this critical dialog and we look forward to 
beginning the work we have ahead of us with the Transit Rail Advisory 
Committee for Safety (TRACS). Once again, I thank the Subcommittee for 
holding this hearing and for providing me the opportunity to present 
APTA's views. I look forward to answering your questions.

        RESPONSES TO WRITTEN QUESTIONS OF CHAIRMAN DODD
                        FROM RAY LaHOOD

Q.1. How will FTA oversee State agencies that opt into the new 
program if enacted?

A.1. The Federal Transit Administration (FTA) proposes to use 
its staff to audit the performance of State agencies that have 
adopted a Public Transportation Safety Program. FTA will ensure 
that each participating State program meets or exceeds the 
minimum Federal standards for adequacy in the areas of 
staffing, training, and statutory authority to conduct 
meaningful oversight. Similar to existing FTA program audits, 
the safety audit process will include a scheduled program 
review (probably on a 3-year cycle) with unscheduled spot 
audits of specific activities.

Q.2. Staffing needs will vary from State to State based on the 
number and size of rail systems within each State. What 
methodology will FTA use to determine the proper staffing level 
at FTA needed to carry out this regulatory role?

A.2. FTA will need to build internal staff to develop and 
maintain the regulatory program as well as monitor State 
agencies and enforce Federal regulations in those States that 
``opt out.'' In determining proposed staffing levels, FTA 
performed an initial preliminary workforce analysis factoring 
such considerations as the complexity of existing rail transit 
infrastructure; the number of personnel engaged in current 
Federal oversight activities; the number of transit systems and 
their current geographic locations; the number of track miles 
associated with the State safety oversight program; and, 
current and projected ridership. Workforce analysis will 
continue to be refined as the program evolves based on State 
participation and the specific requirements of the regulations 
that are developed.
                                ------                                


        RESPONSES TO WRITTEN QUESTIONS OF CHAIRMAN DODD
                    FROM JOHN B. CATOE, Jr.

Q.1.a. In light of the recent accidents nationwide, many 
believe there should be a stronger role for the Federal 
Government in transit safety. What do you believe is the proper 
amount of authority and oversight at the Federal level?

A.1.a. I believe that there needs to be consistency in safety 
oversight across the country. To ensure that, I believe that 
the Federal Government needs to take a more active role in 
transit safety oversight. As I discussed in my testimony, 
Federal authority should be designed to ensure consistency 
across the country in the following elements: funding for 
qualified staff; enforcement authority; and regulations that 
are focused on system safety and that were developed using a 
cost/benefit analysis.

Q.1.b. What are the concerns of the industry in regards to the 
Administration's proposed new Federal role in transit safety?

A.1.b. Assuming that the elements I mentioned above are 
addressed, the key concern that I have is how transit agencies 
will find the resources to address any changes required by a 
new Federal safety regulator. As I mentioned in my testimony, 
if a regulator tells a transit agency it must spend funds to 
correct an identified safety issue without providing at least 
some of that funding, the agency may have to defer other needed 
maintenance, with the potential to create other--perhaps more 
serious--safety issues.

Q.1.c. What should FTA consider when developing standards if 
this proposal is enacted?

A.1.c. If the Federal Government is going to establish 
standards, I would strongly recommend that it start with the 
national standards that have already been developed by the 
American Public Transportation Association, and also that it 
recognize the importance of conducting cost/benefit analysis 
for any regulatory proposal.

Q.2.a. GAO stated in their testimony that some states have 
given their oversight agencies enforcement authority, but many 
of these oversight agencies have ``rarely, if ever, used it.'' 
How will enforcement authority help oversight agencies be 
effective?

A.2.a. As I stated in my testimony, effective oversight 
requires the ability to ensure compliance when the situation 
warrants. However, the most effective oversight will come from 
having the staffing and expertise to work collaboratively with 
the transit agency. Enforcement authority must be part of an 
overall oversight mechanism that also includes funding for 
qualified staff.

Q.2.b. Moreover, current law allows for FTA to withhold 5 
percent of formula funds from a State that is not in 
compliance. Has this been effective? If not, what enforcement 
tools would be effective?

A.2.b. As General Manager of the Washington Metropolitan Area 
Transit Authority, I can state that my motivation for 
maintaining safety is to assure the highest level of safety for 
our customers and employees. We do what is needed to maintain 
safety because it is part of the job of providing this 
important transportation service and it is essential to protect 
the lives of those in our system--not because we fear that we 
will get a fine.
    As the Congress considers new Federal transit safety 
legislation, I encourage you to consider alternatives to fines 
or withholding of funds. Unlike other transportation providers 
like freight railroads and airlines, transit agencies are not 
profit-making entities. Any fines or withholding of funds would 
have to come not from profits, but from our limited pool of 
public funding--which, if depleted further, could actually have 
the unintended consequence of reducing system safety.
    As I stated in my testimony, the Federal Government 
regulates or oversees numerous other industries and activities 
besides transportation, and I expect that a thorough review of 
compliance and enforcement mechanisms used by the various 
Federal agencies would yield some ideas that could be effective 
in the transit context without adversely impacting system 
safety.
                                ------                                


        RESPONSES TO WRITTEN QUESTIONS OF SENATOR CARDIN
                    FROM JOHN B. CATOE, Jr.

Q.1.a. In Thursday's hearing, Senator Jack Reed asked about the 
warning system in place to notify the control station of 
signaling errors. How many signaling errors occur per day?

A.1.a. My only mention of signaling errors in my December 10 
testimony referred to the failure of train detection (wrong-
side failure) as it pertains to the National Transportation 
Safety Board (NTSB) findings of the June 22 collision. The 
signaling system is an extremely complex system with literally 
millions of components performing diverse functions over the 
213 miles of mainline track; in the service, inspection and 
storage yards; and onboard the transit vehicles. There are 
several malfunctions per day of different components throughout 
the system; however, wrong-side failures are extremely rare. 
Only two other similarly severe wrong-side failures of the 
signaling system are known in the history of the Washington 
Metropolitan Area Transit Authority (WMATA). These incidents, 
which are well publicized, occurred in the Rosslyn tunnel and 
at the Potomac Avenue Metrorail station.

Q.1.b. How are the errors that trigger these warnings dealt 
with both in the short term and the long term?

A.1.b. In the short term, WMATA has increased testing and 
performs twice-daily reviews of track circuit performance. 
WMATA instituted a formal business process that enlists the 
services of several departments. The review begins with 
engineers evaluating the performance of all mainline track 
circuits twice a day by reviewing central computer data for all 
train movements during peak service. Data anomalies are 
reported for investigation by maintenance personnel. 
Unexplained data that appear to indicate hazardous conditions 
receive immediate attention, and maintenance personnel are 
dispatched. Once the cause of the data anomaly has been 
corrected the equipment is restored to service.
    To address system anomalies in the long term, an automated 
real-time warning system will be developed and deployed. As I 
testified, we expect to deploy this system later this year. The 
warning system will notify Central Control personnel within 
seconds of a track circuit difficulty with train detection. 
Using future internal controls developed around the warning 
system, the Central Control supervisory staff would stop trains 
as they approach the problem location, allow manual operation 
passage at slow speed, and initiate track circuit maintenance 
personnel response, all within seconds of the alarm.

Q.2.a. In your testimony, you mentioned that the Tri-State 
Oversight Committee has overseen internal safety efforts since 
1997. You described them as a partner in your efforts to 
maintain the highest safety levels. Yet on November 9, 2009, 
the Washington Post reported that Metro denied the Tri-State 
Oversight Committee from inspecting the rails. Does Metro have 
any obligation to let the Tri-State Oversight Committee conduct 
investigations or follow their recommendations?

A.2.a. The Tri-State Oversight Committee (TOC) is the State 
Safety Oversight (SSO) agency for the WMATA Metrorail system, 
Under Federal Transit Administration (FTA) regulation 49 CFR 
Part 659, which went into effect in 1997, all States with a 
defined rail transit system that is not under the jurisdiction 
of the Federal Railroad Administration (FRA) must develop and 
maintain a SSO agency, In general, almost all heavy-rail rapid 
transit systems such as WMATA, the New York City subway system, 
other large-city subway systems, and light rail systems are 
outside the jurisdiction of the FRA and thus come under the 
jurisdiction of the SSO, if they are funded by the FTA.
    Under the regulation, each State is responsible for 
designating an agency to carry out the SSO requirements. The 
States have latitude to determine which entity can conduct the 
oversight, as long as it is not the transit agency itself. At a 
minimum, the regulation requires that the SSO agencies do the 
following: develop standards for the transit system's safety 
and security plans; approve these plans; investigate accidents 
and hazardous conditions which meet certain criteria prescribed 
in 49 CFR Part 659; require the transit system to develop 
corrective action plans to address safety deficiencies; approve 
the corrective action plans; and conduct independent reviews of 
the implementation of the safety and security plans on at least 
a triennial basis. The SSO agencies can also conduct other 
activities as they deem appropriate based upon state specific 
requirements. If the FTA determines that a State is not in 
compliance with the SSO requirements, it can withhold up to 5 
percent of the grant funds to that State transportation or rail 
system.
    Unlike the FRA or FAA, however, SSOs have no authority 
under 49 CFR Part 659 or by any other FTA regulations to 
enforce their findings with fines, civil actions, or other 
penalties. Any such authority must come from State 
legislatures. The FTA intended the SSO program to function as a 
``cooperative'' effort with the transit agencies and as such it 
was not designed to operate under the traditional regulatory 
framework of fines and penalties.
    Over the past 6 months, WMATA and the TOC have worked 
together to review the effectiveness and implementation of a 
variety of initiatives and recommendations. Most recently, TOC 
urged WMATA ``to take immediate, short-term action to better 
ensure the safety of workers in the Right of Way (ROW),'' TOC 
had provided to WMATA's Executive Leadership Team a report 
titled, ``WMATA's Rail Transit Special Safety Study-Roadway 
Worker Protection.'' WMATA carefully reviewed this report and 
implemented the following immediate actions:

    A copy of this report was provided to senior 
        leadership of ATU Local 689 and to safety and track 
        maintenance experts at four peer transit agencies 
        around the Nation, as well as to the FTA, for review.

    A ROW safety workshop was conducted January 11-13, 
        2010, with TOC as an active participant. During this 
        workshop, key themes were identified (e.g., practical 
        field testing, tunnel walks, announcements, and general 
        awareness of the location of workers on the ROW).

    WMATA will focus efforts on reviewing the rules and 
        protections for lone workers, track walkers, and 
        temporary/emergency work sites.

    Key sections of the Rulebook will be reviewed and 
        redeveloped.

    ``Roll-out'' training will be implemented for the 
        new ROW Worker Protection Program.

    We look forward to continuing the partnership with TOC to 
review and strengthen WMATA's rail program.

Q.2.b. What was the reason for not letting the Tri-State 
Oversight Committee conduct an inspection?

A.2.b. WMATA at no time denied the TOC the ability to conduct 
an inspection. WMATA did, however, work with the TOC to 
determine the safest possible way to achieve their goals. In a 
December 2, 2009, news article published by WTOP.com. TOC 
Chairman Eric Madison stated, ``We want to make it clear. Metro 
wasn't barring us from the tracks. The issue was how we access 
the tracks. Metro's concern was that we access the tracks as 
safely as possible. And we wanted to make sure that we were in 
compliance with their rules as well. I think we have a clear 
understanding now of what we are trying to achieve and how 
Metro can help us do that.''

Q.3.a. Metro's publicly announced its plan to increase 
accountability. I applaud this action. Can you tell me what has 
resulted from this new increased accountability policy?

A.3.a. In recent months, the WMATA Board of Directors has taken 
several actions to improve safety oversight at WMATA. For 
example, on November 19, 2009, the Board established a new 
Board policy requiring WMATA staff to cooperate fully with the 
federally recognized safety oversight agency, the TOC. During 
its monthly Customer Service, Operations and Safety Committee 
meetings, the Board receives regular reports on safety and 
operational performance, including summaries of information 
such as rail injury and fatality rates, distance between bus 
incidents, and smoke and fire incidents. The operations report 
reviews information such as rail on-time performance, bus on-
time performance, and elevator and escalator availability.
    WMATA recently established an Office of Performance with 
the stated mission of using performance information to guide 
actions, to promote WMATA's benefits in the region, and to 
unify employees to accomplish our goals. The staff includes 
seven people with expertise in performance measurement, data 
validation and analysis, and other areas such as strategic 
planning, finance, and organizational management. Deliverables 
from this new office will be grounded in WMATA's five strategic 
goals and include execution plans that link departmental work 
to those strategic goals, a performance tool that will track 
agency progress towards achieving WMATA's vision of being the 
``Best Ride in the Nation,'' and an annual performance report. 
Key safety performance and operational reliability measures 
will be incorporated into these products based upon available 
data, current performance reporting efforts, and industry best 
practices.
    In addition, WMATA has formed a Safety Action ``Report 
Out'' Team which meets every 2 weeks and is responsible for 
tracking safety performance and addressing specific actions to 
improve safety in all operations work areas. The team will 
report directly to the General Manager, the Deputy General 
Manager of operations, and the Chief Safety Officer to drive 
accountability for safety at WMATA. The Board will be carefully 
monitoring the progress of the Safety Action Team.

Q.3.b. What measures of accountability have occurred and where 
does the buck stop?

A.3.b. WMATA has instituted a number of improvements to 
transparency and accountability including:

    increasing review of criminal history and 
        credentials of potential employees;

    partnering with other transit properties and 
        national safety facilities to ensure current and robust 
        employee training;

    revising the Metrorail and Metrobus Safety Rules 
        and Procedures and the Authority's System Safety 
        Program Plan;

    meeting with frontline management to reinforce 
        their responsibility to ensure safe workplace and 
        service; management will report to me periodically on 
        safety in their work sites;

    Ongoing training and coaching to develop a safety 
        culture;

    Changing executive management structure where 
        necessary;

    Partnering with unions, FTA, TOC, and other transit 
        properties to achieve goals.

    It will take the efforts of every WMATA employee to make 
WMATA the safest system possible. However, no one is more 
accountable than I am.
                                ------                                


        RESPONSES TO WRITTEN QUESTIONS OF CHAIRMAN DODD
                        FROM DAVID WISE

Q.1. In light of the recent accidents nationwide, many believe 
there should be a stronger role for the Federal Government in 
transit safety. What do you believe is the proper amount of 
authority and oversight at the Federal level? What are the 
concerns of the industry in regards to the Administration's 
proposed new Federal role in transit safety? What should FTA 
consider when developing standards if this proposal is enacted?

A.1. In determining the proper amount of authority and 
oversight at the Federal level, it is important to consider 
whether uniform Federal standards are needed and the capacity 
of the States versus FTA to carry out transit safety oversight.

    Regarding standards, FTA's current regulation on 
        the State Safety Oversight (SSO) Program requires that 
        transit agencies' safety plans include various minimum 
        components of safety management, such as a process for 
        identifying, managing, and eliminating hazards. In 
        addition, State oversight agencies may choose to 
        develop technical standards, such as requirements for 
        the strength of track or crashworthiness of rail 
        vehicles.

    Regarding the capacity of the States to perform 
        safety oversight, we found in 2006 that, while most 
        oversight agency staff believed they were doing a good 
        job, the levels of resources, staff expertise, and 
        enforcement powers varied across State oversight 
        agencies. Oversight agencies were unsure whether they 
        had sufficient numbers of staff to adequately oversee a 
        transit agency's operations; 13 of 24 agencies 
        estimated dedicating less than one full-time equivalent 
        staff member to the oversight task. Many State 
        officials stated that they were unsure if they were 
        adequately trained. Also, we found that 19 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. In response to our 
        recommendation, FTA developed a suggested training 
        curriculum for State oversight staff and, currently, 
        over 50 percent of these agencies have staff who have 
        completed at least the first tier of this training.

    Regarding the capacity of FTA to perform safety 
        oversight, the agency currently has a small number of 
        safety staff (5 filled headquarters positions) as well 
        as a contractor for the SSO program with about 4-5 
        staff. To fulfill its proposed role, it would need to 
        significantly enhance its internal and contractor 
        staffing and expertise.

    It may also be helpful to compare FTA's authority with that 
of other modal administrations within DOT. FTA currently has 
less authority to regulate and oversee safety than these other 
agencies. For example, the Federal Railroad Administration, 
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 inspectors and, in some instances, 
State inspectors 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. However, FTA historically has been primarily a 
grant-making agency.
    We do not have information on the views across the transit 
industry on the Administration's proposal. However, as part of 
our ongoing review of challenges to improving rail transit 
safety, we intend to interview officials of major rail transit 
systems and will ask for their views on the proposal.
    If the proposal is enacted, FTA will face challenges in 
developing safety standards for an industry that varies a great 
deal. For example, transit systems use different types of 
vehicles and these vehicles operate on different types of track 
with different power sources. FTA could develop standards that 
are flexible enough to apply to varying types of transit 
systems or develop separate more specific standards for the 
different types of vehicles and track. The latter approach 
could be a lengthy process and could require multiple parallel 
rulemakings. DOT has noted that it does not plan to develop 
highly specific regulations but instead, as a first step, would 
require each transit system to implement ``Safety Management 
Systems'' that would identify its greatest safety 
vulnerabilities through risk analysis and then take the 
necessary actions to address those risks. Risk management is a 
systematic approach for dealing with the risks posed by safety 
hazards (such as collisions, derailments, or worker or 
passenger injuries). Risk management can help to improve 
systemwide safety by systematically identifying and assessing 
the risks associated with various safety hazards and 
prioritizing them so that resources can be allocated to address 
the highest risks first. It also can help in ensuring that the 
most appropriate alternatives to prevent or mitigate the 
effects of hazards are designed and implemented.
    FTA established the Transit Rail Advisory Committee for 
Safety in December 2009. This Committee, which will consist of 
up to 25 voting members, is charged with analyzing transit 
safety issues and developing recommendations for minimum, 
national transit safety standards. We believe this is a 
positive step that will enable FTA to tap into the expertise of 
various key stakeholders in developing regulations.

Q.2. GAO stated in their testimony that some States have given 
their oversight agencies enforcement authority, but many of 
these oversight agencies have ``rarely, if ever, used it.'' How 
will enforcement authority help oversight agencies be 
effective? Moreover, current law allows for FTA to withhold 5 
percent of formula funds from a State that is not in 
compliance. Has this been effective? If not, what enforcement 
tools would be effective?

A.2. Based on prior work on enforcement of transportation 
safety regulations, we believe that providing FTA and 
participating States with enforcement authority could help 
better ensure that transit systems take corrective actions when 
problems are found. For example, safety inspection and 
enforcement can lead to the correction of safety problems and 
improved compliance with safety regulations and, as a result, 
reduce accidents.
    Under the current SSO program, FTA can withhold State 
formula funds from States that are not meeting SSO 
requirements. Prior to 1999, FTA has withheld formula funds 
twice: (1) about $95 million from one State for its failure to 
designate a State safety oversight agency, and (2) about $2.3 
million from another State for failure to meet the FTA rule's 
implementation deadlines. Since then, FTA has not withheld 
formula funds from any States due to noncompliance with these 
requirements.
    The transit agencies FTA oversees usually are 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 
could ultimately bear the cost of fines. There are other 
enforcement options available, however. For example, in 
addition to penalties, 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. The American Public 
Transportation Association also has suggested a timetable to 
allow transit systems to be brought into compliance without 
penalty as well as providing FTA with the ability to direct 
grant funding for transit systems to be used to correct 
significant incidences of noncompliance. In addition, the 
negative consequences of noncompliance--such as those stemming 
from lawsuits and bad publicity--can serve as a deterrent.
                                ------                                


        RESPONSES TO WRITTEN QUESTIONS OF CHAIRMAN DODD
                       FROM BRIAN CRISTY

Q.1. In light of the recent accidents nationwide, many believe 
there should be a stronger role for the Federal Government in 
transit safety. What do you believe is the proper amount of 
authority and oversight at the Federal level?

A.1. On behalf of the Massachusetts Department of Public 
Utilities (DPU), I support the Administration's proposal as a 
means to provide robust Federal safety oversight of rail 
transit systems. I agree with the Administration's intention to 
institute a performance-based approach to oversight by 
establishing a quality safety management system for each rail 
transit agency. In exercising oversight authority, I agree with 
Secretary LaHood that the Federal Transit Administration (FTA) 
must be permitted to establish and enforce meaningful minimum 
safety standards for all rail transit systems. These standards 
should address, among other areas, hours-of-service regulations 
for rail transit operators, crashworthiness standards for rail 
vehicles, and the installation of event recorders on all rail 
vehicles. Further, as part of the proposed safety certification 
program identified by Secretary LaHood, I believe that State 
oversight agencies should be authorized to investigate and 
discover minimum standard safety violations, and report such 
violations to the FTA. In turn, the FTA should be permitted to 
enforce these standards through the assessment of monetary 
penalties against a rail transit authority for noncompliance. 
Further, the proposed legislation should provide for safety 
training and staffing support in order to effectively implement 
the FTA standards. Finally, I agree that the proposed 
legislation should not preempt States from establishing more 
stringent safety standards.

Q.2. What are the concerns of the industry in regards to the 
Administration's proposed new Federal role in transit safety?

A.2. Because the final regulations have not yet been 
promulgated, I have some concern regarding the ability of the 
local rail transit system to implement the Federal requirements 
in an efficient and expeditious manner, while maintaining the 
paramount objective of public safety. The most effective set of 
minimum standards will be those that are easy to interpret and 
implement by existing rail transit systems. Further, the 
specific requirements of the program (e.g., minimum standards, 
inspections, reporting, etc.) should not unduly constrain, 
administratively, financially, or otherwise, either the 
oversight agency or the rail transit system. That said, I am 
encouraged by Secretary LaHood's testimony that the proposed 
legislation is not intended to create voluminous and highly 
specific regulations.

Q.3. What should FTA consider when developing standards if this 
proposal is enacted?

A.3. In addition to the above considerations, I agree with 
Secretary LaHood's testimony that each rail transit system 
should identify its safety issues and take the necessary 
actions to address those risks. Thus, I would encourage the FTA 
to communicate directly with the oversight agencies and the 
individual rail transit systems in developing safety standards. 
More specifically, however, I believe that the FTA should 
carefully consider the role of the rail transit system's safety 
department, as this group is responsible for maintaining day-
to-day safety on the system. I spoke to some extent in my 
initial testimony about the important relationship between the 
MBTA's safety department, and the DPU, as the oversight agency. 
It is my belief that any safety training and staffing support 
provided by the new legislation should be directed to 
maintaining an experienced, well-trained safety department.

Q.4. GAO stated in their testimony that some States have given 
their oversight agencies enforcement authority, but many of 
these oversight agencies have ``rarely, if ever, used it.'' How 
will enforcement authority help oversight agencies be 
effective?

A.4. Enforcement authority is an important part of a safety 
oversight program. As I noted above, the FTA should be 
authorized to institute fines for noncompliance with minimum 
safety standards. I believe the assessment of a monetary 
penalty will provide the necessary incentive for an otherwise 
noncompliant entity to ensure that it continues to meet Federal 
regulations. The FTA should retain the authority prescribe 
appropriate due process mechanisms related to the assessment of 
monetary penalties.

Q.5. Moreover, current law allows for FTA to withhold 5 percent 
of formula funds from a State that is not in compliance. Has 
this been effective? If not, what enforcement tools would be 
effective?

A.5. I believe that the current law allowing for the FTA to 
withhold 5 percent of formula funds from a noncompliant State 
is not effective in most cases, at least as it applies to 
Massachusetts. The reason for this is because the formula funds 
are distributed to all transit systems in the Commonwealth, not 
just the MBTA. Thus, if 5 percent of the funds are withheld 
because of a violation incurred by the MBTA, the remaining 
transit systems (i.e., buses) are adversely impacted, as well. 
As noted above, an effective enforcement tool would be the 
assessment of a monetary penalty against the rail transit 
system.
                                ------                                


        RESPONSES TO WRITTEN QUESTIONS OF CHAIRMAN DODD
                      FROM WILLIAM MILLAR

Q.1. In light of recent accidents nationwide, many believe 
there should be a stronger role for the Federal Government in 
transit safety. What are the concerns of the industry in 
regards to the Administration's proposed new Federal role in 
transit safety?

A.1. Rail transit in America is an extremely safe mode of 
transportation, but it can always be made safer. APTA believes 
the Administration's proposal is a good start in the effort to 
strengthen the Federal role in transit safety. We appreciate 
the Congress' and the Administration's willingness to consider 
APTA's views and to work with the industry as this proposal 
moves forward. If Congress enacts this proposal, we will work 
cooperatively with the Administration as it implements this 
program. As I discussed in my testimony, we believe that the 
Federal Transit Administration (FTA) is the appropriate agency 
to oversee this program, and we support adequate Federal 
funding to implement this program, to ensure the availability 
of qualified safety experts and to bring systems up to a state 
of good repair which should have a positive effect on safety. 
Further, we are appreciative of the anticipation that this 
proposal would envision the use of APTA as a Standards 
Development Organization (SDO).
    The industry has several concerns in regards to the 
Administration's proposed new Federal role in transit safety. 
The most important aspect in creating a new regulatory program 
is consistency. There must be consistent application, adherence 
and enforcement in order for any new Federal program to be 
successful. The public transit industry believes that to ensure 
consistency, Federal safety standards should preempt State and 
local standards. Uniformity and a national focus are the 
essential elements of achieving a successfully applied Federal 
safety standards program. While some States or local entities 
may seek to separate standards for safety, to do so might 
ultimately detract from the overall effort. Standards created 
in one location would, through the threat of litigation, become 
a de facto national standard. Such de facto standards would 
serve to supplant the judgment of the FTA, an agency whose work 
is crafted by the collective experience of the industry, and 
will thus create a disjointed collection of separate standards 
driven by decisions handed down by the courts. Uniformity is 
essential to ensuring that the Federal investment is 
effectively used for safety initiatives that reflect national 
safety priorities.
    In addition, we are concerned that the proposal does not 
contain clear language outlining enforcement mechanisms. Public 
transit agencies are public entities funded with taxpayer 
dollars and fares from riders, therefore, levying monetary 
fines is counterproductive as an enforcement scheme. The most 
effective method of providing enforcement may be to vest the 
FTA with the authority to impose ``grant conditions'' on 
grantees, requiring significant safety findings be fixed prior 
to allowing an agency to move forward with other projects.

Q.2. What should FTA consider when developing standards if this 
proposal is enacted?

A.2. If this proposal is enacted, the FTA should consider that 
the development of effective Federal transit safety standards 
requires the involvement of transit industry expertise. 
Adequate funding must also be provided for the FTA to 
accomplish this mission.
    Since 1996, APTA has been creating consensus based 
voluntary transit industry standards. Over 170 standards have 
been created to date, with nearly 96 rail transit safety 
standards in operation across the country. The APTA standards 
program was developed by thousands of industry volunteers 
serving on numerous working committees, creating standards for 
bus, rail transit and commuter rail operations, maintenance, 
procurement and Intelligent Transportation Systems (ITS). 
Funded in part by over $3 million in grants received from the 
FTA, our organization is an officially accredited SDO that is 
widely recognized as the leader in developing transit 
standards. Further, the APTA standards program for commuter 
rail has been used by the Federal Railroad Administration (FRA) 
and is incorporated into their regulatory program.
    APTA's consensus based standards are currently being 
utilized by public transit systems throughout North America to 
achieve operational efficiencies and safety improvements in 
services, facilities and vehicles. It is important to 
understand that the transit industry not only assists in 
developing the APTA standards but also operationally implements 
these standards at transit properties. As such, there is no 
reason for the FTA to create an entirely new program. We 
strongly encourage the FTA to use APTA's existing standards 
program as the foundation of their new initiative. 
Incorporating, where appropriate, the existing APTA standards 
program already in practice will serve to substantially reduce 
the cost of developing standards and will also provide for a 
more effective transition period and final implementation. 
Furthermore, using existing standards also follows a 
Congressional directive put forth in the National Technology 
Transfer and Advancement Act of 2005 (P.L. 104-113), which 
encourages Government agencies to work together with industry 
leaders to develop private, voluntary safety standards for 
Federal grantees.
    As was the case with the initial creation of State Safety 
Oversight Agencies (SSOAs), the unfunded Federal mandate left 
States scrambling to find funding to employ properly trained 
staff and to implement effective programs. As a result, the 
program we currently have is disjointed, uneven in its 
effectiveness and varies greatly from one agency to the next. 
To make certain that a similar situation does not reoccur, the 
FTA must work with Congress to ensure that adequate funding is 
provided to hire and develop additional personnel and subject 
matter experts at the Federal level, to properly train and 
staff State oversight agencies, and to create a national FTA 
transit safety standards certification program to ensure that 
there is a national network of uniformly trained transit safety 
professionals at the Federal, State and transit agency levels. 
The FTA organization structure must also be reorganized so that 
it can properly support the new program.
    Furthermore, Congress and the Department of Transportation 
must also ensure that both passenger rail regulatory agencies 
(the FRA and the FTA) work to create a consistent and 
coordinated approach to regulations as there are many locations 
where both agencies operate side-by-side or are operated 
jointly by the same multimodal public transportation agency.
    GAO stated in their testimony that some States have given 
their oversight agencies enforcement authority, but many of 
these oversight agencies have ``rarely, if ever, used it.''

Q.3. How will enforcement authority help oversight agencies be 
effective?

A.3. State Safety Oversight Agencies tend not to use their 
enforcement authority because it is rare that such action is 
necessary. The public nature of the industry and its commitment 
to provide a safe public service is a higher priority than all 
other duties, therefore, when a significant safety hazard is 
identified, corrective actions are usually taken. Of the few 
SSOAs that do possess such authority, it is extremely rare that 
safety situations go unchecked or escalate to a point which 
would necessitate the utilization of enforcement powers.
    Public transit agencies are extraordinarily aware of and 
sensitive to public perception, local politics and customer 
service. Whereas private carriers may perceive fines from 
Federal regulators as a natural cost of doing business, public 
transit business models are simply unable to withstand similar 
monetary and public perception penalties. Public transit 
agencies are public purpose, not-for-profit entities funded 
with taxpayer dollars and fares from riders. There is no profit 
from which to pay fines. A substantial fine would result in 
less revenue, which would lead to a reduction in service or 
higher fares, either of which would push riders to use less 
safe modes of travel. As previously stated, the most effective 
method of providing enforcement is for the FTA to impose 
``grant conditions'' on transit agencies, requiring significant 
safety issues be fixed prior to allowing an agency to access 
funds for regular needs and planned projects.
    To the extent that monetary fines are inappropriate 
penalties for public transit agencies, we recognize that there 
must be measures of accountability in the event corrective 
actions are overlooked or ignored. Through our successful APTA 
Safety Audit Management Program, it has been our experience 
that once a safety issue is identified through an audit, a 
transit agency will immediately work to correct the deficiency.
    Moreover, current law allows for FTA to withhold 5 percent 
of formula funds from a State that is not in compliance.

Q.4. Has this been effective? If not, what enforcement tools 
would be effective?

A.4. Under the Safe, Accountable, Flexible, Efficient 
Transportation Enhancement Act: A Legacy for Users (SAFETEA-LU) 
the FTA was permitted to begin withholding up to 5 percent of 
an entire State or urbanized area's 5307 Urbanized Area Grant 
Formula funding if a transit agency is found to be noncompliant 
on rail transit safety matters. This is not effective for 
several reasons. As the statute is currently written, safety 
noncompliance at an individual transit agency can result in an 
up to 5 percent reduction of an entire State's or Urbanized 
Area's (UZA) 5307 funds. Nowhere in the statute does the 
language identify that this penalty in the form of a funding 
reduction can be conveyed upon a particular transit agency, 
instead the statute explicitly allows for the entire State or 
UZA to be penalized, complicating matters for States and UZAs 
that have more than one transit agency. Furthermore, funding 
reductions prevent already cash strapped transit agencies from 
being able to properly leverage all available funds for 
critical corrective safety actions.
    Recognizing the inequities associated with such a penalty, 
State oversight agencies have historically opted against 
reporting infractions as an enforcement tool. A much more 
effective enforcement mechanism would be to permit the FTA to 
impose ``grant conditions'' on grantees that are found to be in 
significant noncompliance with federally imposed safety 
regulations. Requiring transit agencies to direct their 5307 
Urbanized Area Grant Formula funding to address significant 
incidences of noncompliance would better ensure that mandatory 
Federal safety requirements are met.
    The imposition of ``grant conditions'' should be 
incorporated through an adequate timetable, allowing transit 
agencies to bring their systems into compliance without 
incurring any form of penalty. Once the initial compliance 
period has elapsed, a progressive ratings system should be 
instituted, whereby instances of noncompliance will be 
evaluated based on risk and/or necessity. Further analysis is 
necessary to determine if 100 percent of 5307 funds of a 
noncompliant agency should be redirected towards corrective 
actions, or if instead, a similar evaluative ratings process 
should be instituted, allowing for progress in correcting 
safety issues while simultaneously providing transit agencies 
with the flexibility to adequately fund other existing 
programs.

              Additional Material Supplied for the Record

    STATEMENT OF BENJAMIN L. CARDIN, U.S. SENATOR FROM THE STATE OF 
                                MARYLAND

    Chairman Menendez, thank you for the unique opportunity to issue a 
statement in your Subcommittee about this important issue that hit all 
too close to home for me on the afternoon of June 22 this year.
    The safe operation of Metro, and any transit system must not just 
be promised but also delivered. I share Senator Mikulski's frustration 
with WMATA's record on improved safety measures when just 2 weeks ago, 
on November 29th, yet another Metrorail accident occurred near Falls 
Church, Virginia, injuring three Metro employees and destroying three 
rail cars.
    We have heard a lot of talk about the steps being taken at Metro to 
improve safety but what we need to see are results and accountability 
for when the safety of costumers and employees is compromised.
    Part and parcel to the safe operation of any transit system is 
having adequate resources to maintain, repair and upgrade when 
necessary the essential infrastructure that deliver riders to their 
destinations. I have worked hard in the Environment and Public Works 
Committee to improve the funding authorizations for transit funding. In 
2008 I was able to secure a 10 year $1.5 billion authorization for 
Metro. Building on that, I was very pleased that Senator Mikulski 
through her role on the Appropriations Committee was able to 
appropriate the first $150 million dollar installment of funds to 
Metro.
    I completely understand that some of the most basic safety 
improvements require financial resources. Funding shortfalls have 
caused Metro to make repairs instead of replacing aging equipment or 
structures throughout the system. Repairing last year, I visited the 
Shady Grove Station and witnessed first-hand how they literally are 
using wood planks and iron rods to prop up station platforms. They have 
been forced to make such accommodations to keep the system running in 
the safest way possible.
    Metrorail is the second busiest commuter rail system in America, 
carrying 1 million passengers a day. It carries the equivalent of the 
combined subway ridership of BART in San Francisco, MARTA in Atlanta, 
and SEPTA in Philadelphia each day. But more than three decades after 
the first trains started running, the system is showing severe signs of 
its age. Sixty percent of the Metrorail system is more than 20 years 
old. The costs of operations, maintenance, and rehabilitation are 
tremendous.
    I believe that we must look at this not only as the responsibility 
of the local jurisdictions--Maryland, Virginia, and Washington, DC--but 
also as a Federal responsibility. Federal facilities are located within 
footsteps of 35 of Metrorail's 86 stations. Nearly half of Metrorail's 
rush hour riders are Federal employees. Approximately 10 percent of 
Metro's riders use the Metrorail stations at the Pentagon, Capitol 
South, or Union Station, serving the military and the Congress. In 
addition, Metro's ability to move people quickly and safely in the 
event of a terrorist attack or natural disaster is crucial. The Metro 
system was invaluable on September 11, 2001, proving its importance to 
the Federal Government and to the Nation during the terrorist attacks 
of that tragic day. There is a clear Federal responsibility to this 
system.
    The devastating June 22 Metrorail accident that claimed nine lives 
and injured more than 70 passengers is the most devastating by any 
measure in Metro history. I want to once again send my deepest 
sympathies to the families, friends, and all those whose lives the 
victims of this tragedy.
    The investigation by the National Transportation Safety Board is 
ongoing and I am happy to hear that Metro is cooperating with these 
Federal investigators. However, when regional authorities came out to 
inspect certain sections rail lines they were denied access. Metro's 
mishandling of the resolution of this catastrophe and further 
accidents, some fatal, that have occurred since the June 22 accident 
raise a number of reasonable questions about the condition of Metro's 
infrastructure and WMATA's grasp on how to safely run the system.
    News reports found that the train car that caused the fatal 
accident was an older model that Federal officials had recommended for 
replacement. It did not have a data recorder or modern improvements to 
stand up to a collision, safety measures also recommended by NTSB to be 
put in place on metro trains. The cars were also 2 months behind on its 
scheduled maintenance. Metro officials are replacing these aging cars 
that date back to the 1970s. These costly replacements are being made, 
but the pace is too slow. In the meantime, Metro is repairing some of 
these older cars to keep them in service until new ones can be 
purchased.
    I am proud to sponsor Senator Mikulski's National Metro Safety Act 
(S. 1506) to establish Federal safety standards for America's transit 
systems. While transit is statistically one safest modes of 
transportation in the country, the lack of oversight and accountability 
when tragedies do occur is unacceptable. Currently, the U.S. Department 
of Transportation, which provides considerable funding for transit, has 
no authority to determine public safety measures of the projects they 
help fund.
    As we work towards providing better resources for transit systems 
across the country we must also help ensure the safety of our Nation's 
transit systems for the traveling public. Giving DOT and the NTSB 
similar safety standards authority over transit systems that it has 
over buses and airplanes will provide greater safety assurances for the 
millions of people who rely on public transit systems everyday. As we 
learn more about the causes of the June 22 Metro accident it is 
becoming increasingly apparent that it was only a matter of time before 
an incident like this happened. We must take steps to prevent these 
types of accidents from happening again and I look forward to working 
with Senator Mikulski and the Members of this Committee to improve the 
safety of our Nation's transit systems.
                                 ______
                                 
           STATEMENT OF ARUN VOHRA, P.E., PRESIDENT MINI, LLC

    Chairman Menendez, Ranking Member Vitter, and Members of the 
Subcommittee, my name is Arun Vohra. I am the President of MINI, LLC, a 
woman-owned small business that has expertise in high technology 
applications for transportation, infrastructure, energy, and 
manufacturing. I am a Registered Professional Engineer in Maryland, and 
have been working on one of the largest unserved safety issues of 
subways since 2001. The safety issue is dirty electrical insulators 
which support the electrified third rail. When dirty, they leak 
electricity to the ground, causing additional safety issues, as well as 
electrical energy losses, increasing operating cost and infrastructure 
corrosion. I have walked on the tracks of the largest U.S. subways and 
have seen that they all have dirty insulators, especially in the 
tunnels.
    I fully agree with and support the Public Transportation Safety 
Program Act of 2009 proposed by the Honorable Ray LaHood, Secretary of 
Transportation (DOT) and the Honorable Peter Rogoff, Administrator of 
the Federal Transit Administration (FTA). Federal safety regulation, 
oversight and enforcement are desperately needed for subways. Congress 
and the Administration should establish and enforce Federal safety 
standards, protect the public, enhance economic development, increase 
energy efficiency and reduce the carbon footprint of subways to make 
safe, reliable, well maintained, and efficient subways and a strong 
America.
    Safe subway operation depends on the chain of proper design, 
construction, operation, maintenance, service, repair and replacement 
of track, structure (tunnels, bridges, stations) controls, and rolling 
stock. The weakest link in the chain of safe subway operation is 
maintenance that has been deferred, sometimes for years, because of 
tight budgets. The reason why the subways run as well as they do is 
because of the expertise, experience, and dedication of the long 
serving, unrewarded, and unseen workers who are doing the best they 
can, but need help, to provide safe and smooth subway operation.
    I will illustrate the need for Federal safety regulations by 
describing the critical need for cleaning dirty third rail insulators. 
My remarks apply to insulators on all subway systems including the 
Maryland Transit Administration (MTA), Baltimore; Washington 
Metropolitan Area Transit Authority (WMATA); Southeastern Pennsylvania 
Transportation Authority (SEPTA); Chicago Transit Authority (CTA); New 
York City Transit (NYCT); Metropolitan Atlanta Rapid Transit Authority 
(MARTA); Bay Area Rapid Transit District (BART); and Massachusetts Bay 
Transportation Authority (MBTA). Although the press articles quoted 
below concern WMATA, other subways also have the same insulator issues 
as WMATA. Pictures of dirty insulators from some of these subways are 
shown below.
    At the present time, most subways are operating in a survival mode 
with substandard operation due to lack of maintenance. Track 
infrastructure maintenance has often been deferred year after year due 
to budget issues. When maintenance is deferred, systems fail. When 
systems fail, risk is generated and safety is compromised. While this 
rarely results in loss of life, it leads to degraded operation and 
consequently delays and cancellations, causing inconvenience to 
passengers. According to the Washington Post of December 4, 2009, `` . 
. . Metro's projected budget gap for next year has grown 
significantly--to $175 million . . . Metro's recommendation to close 
the gap include . . . shifting $30 million set aside for preventive 
maintenance to the operating budget.'' The proposed FTA safety 
regulations will ensure that the track infrastructure is well 
maintained and supports current and future demand for rail services, 
and does so safely and reliably.
    Subways rely on insulators to keep the electricity that powers 
trains flowing through the third rail where it belongs. The high-
voltage third rail sits on insulators spaced 6 to 10 feet apart, 
depending on the subway, which means there are 500 to 900 insulators in 
just one mile of track. There are about 1,200,000 insulators to be 
cleaned in the Nation's major subways. Keeping so many insulators clean 
enough to break the electric conduction path is an expensive challenge 
to safety and reliability. In the U.S., insulators are rarely, if ever, 
cleaned because cleaning is a manual, slow and costly process 
compounded by limited track availability and space constraints around 
insulators. An automated cleaner has not been available so far, because 
manufacturers have not been willing to invest large amounts of money in 
research and development of cleaners because of the high risk, 
difficulty, and the cost of design and construction. Subways defer 
systemwide insulator cleaning and resort to breakdown replacement. As a 
result, subways routinely replace dozens of burnt out insulators every 
year at considerable cost. In contrast, the Vienna, Austria, subway 
cleans every insulator by hand, every year, because Vienna sees the 
value of safe and reliable service and is willing to pay for it. Dirty 
insulators can have other side effects that are very costly in the long 
run.
    Dirty insulators fail due to the accumulation of electrically 
conducting particulates and dirt on the insulators. The dirt contains 
carbon dust from carbon brushes on the traction motor commutators, dust 
from brake pads, rust particles scraped by the collector shoe from the 
third rail, lime and winter road salt deposits from evaporation of 
water dripping from roads above the rail line, and dirt. Normal 
maintenance of the tracks includes rail grinding that generates a 
significant amount of iron particles that also coat the insulators. The 
dirt eventually short circuits the insulator, causing a corona 
discharge, electrical arcing, smoke, and flame. If the insulator is 
made of fiberglass composite or wood, it will burn. Ceramic insulators 
can become white hot, incandescent and melt. On rare occasions, when a 
ceramic insulator flashes over (fails), it explodes with an ear 
splitting bang, jeopardizing the safety of workers and customers. The 
explosive failure may possibly be due to the instantaneous and enormous 
thermal stresses at the point of flashover, which far exceed the 
tensile and compressive strength of the ceramic material from which the 
insulator is made. Ceramic insulator failure sometimes results in a 
plasma ball, with a temperature of about 5,000 degrees Fahrenheit which 
can vaporize a concrete tie and rebar. Wood ties can be set on fire. 
The reduced support to the running rails due to a burnt out tie, 
especially on a curve, may cause a derailment of a train with 
catastrophic results. The third rail safety cover is typically made of 
fiberglass or wood, and it can also burn. An overheated insulator can 
cause the plastic cover of an adjacent electric supply cable to 
overheat. If the insulator flashes over, the plastic covering can burn, 
releasing possibly lethal toxic smoke. Failed insulators can shut down 
train operations until action is taken to resolve the situation. Failed 
insulators are among the most frequent causes of downtime in many 
subways. As an example, according to the Washington Post of Sunday, 
August 9, 2009, `` . . . Smoke Closes Metro Station. The L'Enfant Plaza 
Metro station was closed for nearly 90 minutes Saturday after Metro 
police noticed heavy smoke coming from the tracks on the Green and 
Yellow lines. A preliminary investigation indicated that the smoke 
developed after an insulator on one of the tracks caught fire or an 
object came into contact with the insulator . . . .''
    Dirty insulators also leak electricity continuously and increase 
cost. The New York State Energy Research and Development Authority 
(NYSERDA) funded a landmark study in 2008 that showed that the NYCT 
subway loses $2 million per year from leaking electricity from dirty 
insulators. The NYCT Subway has over 440,000 insulators. There are 
about 1,200,000 insulators nationwide.
    Based on the NYSERDA study, the estimated total annual U.S. 
electricity leaking from dirty insulators is 59.4 million kilowatt 
hours at a cost of $12 million. If the insulators were to be cleaned, 
the carbon reduction from the reduced fuel used in the electric 
generating plants would be 7.5 metric tons per year. Based on data from 
subways and the National Transit Database on reported annual insulator 
fires, service outage time per fire, and numbers of customers waiting, 
and the value of customer's time as established in a study sponsored by 
the American Public Transportation Association, the U.S. estimated 
annual passenger delay time cost is $175 million. Based on an estimated 
cost of $10 to clean a heavily encrusted insulator, cleaning would save 
$187 million/1,200,000 or about $156 per insulator. The follow-on 
routine insulator cleaning will be much less costly.
    Stray currents caused by leaking insulators, are another 
significant issue. Stray currents can cause operational problems with 
train control circuits, and significantly increase corrosion of metal 
components and structures in bridges, tunnels and neighboring utilities 
and other metal infrastructure on the tracks. One subway has indicated 
heavy rusting of their bridges and of a fuel pipeline near their 
tracks, and cracking of concrete ties that contain steel reinforcing 
rods. Another subway installed a $4 million cathodic protection system 
to prevent corrosion on a critical part of their system and will have 
to spend $1 (one) million dollars every 5 years to maintain it. 
According to a Washington Post article on December 4, 2009, regarding 
the Metrorail extension to Dulles Airport, there is a safety issue on 
the 32-year old foundations to be used in a new bridge to be built over 
Interstate Highway 66: `` . . . inspections of rust and corrosion and 
tests to determine whether electrical currents from the existing Orange 
Line could have caused pilings to deteriorate, a concern of Metro 
Officials . . . ''.
    The ``electrical currents from the existing Orange Line'' are 
probably leaking electricity from dirty insulators that have not been 
cleaned. The eventual replacement of bridges and other metal 
infrastructure, including the steel reinforcing bars in the tunnels, 
concrete ties, and structures, that have corroded due to leaking 
current from dirty insulators will run into many, many billions of 
dollars. The corrosion of metal conduits that carry the signal 
communications could also lead to train control malfunction and tragic 
accidents.
    Although there is no safety standard on cleaning dirty insulators, 
the FTA is to be congratulated for thinking ahead, recognizing the 
importance of this issue and supporting development of a high speed 
automated in-place insulator cleaner that will make the cleaning 
process safer and affordable. In-place cleaning saves the labor cost of 
$60 to $100 to replace an insulator, and $15 to $70 for a new 
fiberglass or $60 to $100 for a new ceramic insulator. NYSERDA is also 
to be congratulated for providing additional support for a 
demonstration of the cleaner at the NYCT subway. Every dollar spent on 
insulator cleaning will save over 15 dollars in avoidance of electric 
wastage and passenger delays alone.
    Establishing Federal safety regulations would eliminate insulator 
failures, support continued safe, secure, and reliable operation; and 
stimulate economic growth by eliminating passenger delays due to 
insulator failure. Energy diversity would be increased by increasing 
the energy efficiency of subways and Greenhouse gas emissions would be 
reduced.
    In summary, Federal safety regulation, oversight, and enforcement 
will sustain the future, maintain the present, and repair the past. 
Congress and the Administration should establish and enforce Federal 
safety standards, protect the public, enhance economic development, 
increase energy efficiency, and reduce the carbon footprint of subways 
to make safe, reliable, well maintained, and efficient subways and a 
strong America.



STATEMENT OF RICHARD W. CLARK, DIRECTOR OF THE CONSUMER PROTECTION AND 
     SAFETY DIVISION OF THE CALIFORNIA PUBLIC UTILITIES COMMISSION

    Chairman Menendez and Members of the Committee, my name is Richard 
W. Clark. I am the Director of the Consumer Protection and Safety 
Division of the California Public Utilities Commission. I am pleased to 
have the opportunity today to submit this testimony discussing rail 
transit safety and the proposed restructuring of the Federal and State 
regulatory effort.
    This testimony has been prepared by the Consumer Protection and 
Safety Division. The Division has the responsibility for the regulatory 
oversight of rail transit safety in California. This testimony will 
describe the Commission's program, comment on the proposed Public 
Transportation Safety Program Act of 2009, and discuss some examples of 
California's success in exercising its safety jurisdiction over rail 
transit and fixed guideway systems.

The California Rail Transit Safety Program
    The California Public Utilities Commission (CPUC) oversees the 
safety and security of all rail transit systems within California. 
There are 12 rail transit systems under the CPUC's jurisdiction, 
including light rail systems, heavy rail transit, funiculars, automatic 
people movers, and trolleys. Collectively these systems account for 
millions of passenger trips every year. The CPUC is responsible for 
investigating all reportable accidents, as well as conducting regular 
audits and inspections of rail transit systems. Additionally, at any 
given time, rail transit agencies have dozens of new projects, 
extensions, and retrofits in progress, all of which must pass the 
rigorous CPUC safety certification process before carrying passengers.
    Through the California Public Utilities Code, California State law 
gives the CPUC jurisdiction over rail transit safety. For example, 
Public Utilities Code (PU Code) section 99152 states:

        Any public transit guideway planned, acquired, or constructed, 
        on or after January 1, 1979, is subject to regulations of the 
        Public Utilities Commission relating to safety appliances and 
        procedures. The commission shall inspect all work done on those 
        guideways and may make further additions or changes necessary 
        for the purpose of safety to employees and the general public. 
        The commission shall develop an oversight program employing 
        safety planning criteria, guidelines, safety standards, and 
        safety procedures to be met by operators in the design, 
        construction, and operation of those guideways. Existing 
        industry standards shall be used where applicable. The 
        commission shall enforce the provisions of this section.

    Other code sections provide this authority individually to rail 
transit agencies in operation before January 1, 1979. Additionally, PU 
Code Section 778 provides authority over rail transit highway-road 
crossings:

        The commission shall adopt rules and regulations, which shall 
        become effective on July 1, 1977, relating to safety appliances 
        and procedures for rail transit services operated at grade and 
        in vehicular traffic. The rules and regulations shall include, 
        but not be limited to, provisions on grade crossing protection 
        devices, headways, and maximum operating speeds with respect to 
        the speed and volume of vehicular traffic within which the 
        transit service is operated. The commission shall submit the 
        proposed rules and regulations to the Legislature not later 
        than April 1, 1977.

    The Commission also has State level accident investigation 
responsibilities. Transit accidents directly or indirectly related to 
maintenance or operation activities resulting in:

    loss of life,

    or injury to person or property,

    and which requires, in the judgment of the Commission, an 
        investigation,

may result in Commission order(s) or recommendation(s) it deems 
appropriate. Further, every transit agency shall prepare and submit an 
accident report to the Commission under rules prescribed by the 
Commission. Finally, no order or recommendation of the Commission, nor 
any accident report received by the Commission, shall be admitted as 
evidence in any action for damages based on or arising out of such loss 
of life, or injury to person or property. (See, Cal. Pub. Util. Code 
315.)
    The CPUC has quasi-legislative rulemaking authority, and uses it to 
develop General Orders. CPUC General Orders are an integral part of the 
CPUC oversight program, mandating minimum requirements, are specified 
in the following:

    General Order 143-B, Safety Rules and Regulations Governing 
        Light Transit, original implementation date June 27, 1978.

    General Order 127, Rules for Maintenance and Operation of 
        Automatic Train Control Systems--Rapid Transit Systems, 
        original implementation date August 15, 1967.

    General Order 75-C, Rules for Grade Crossing Equipment, 
        original implementation February 14, 1973.

    General Order 88-B, Rules for Altering Public Highway Rail 
        Crossings, original implementation February 14, 1973.

    General Order 95, Regulations Governing the Rules for 
        Overhead Electric Line Construction (e.g., Catenary System), 
        original implementation July 1, 1942.

    General Order 26-D, Regulations Governing Clearance on 
        Railroads and Street Railroads with Reference to Side and 
        Overhead Structures, Parallel Tracks, Crossings, and Public 
        Roads, Highways, and Streets, original implementation date 
        February 1, 1948. This General Order applies to joint-usage or 
        shared track railroads such as San Diego Trolley, Inc. and 
        other rail transit systems not specifically excluded from its 
        requirements.

    General Order 164-D, Rules and Regulations Governing State 
        Safety Oversight of Fixed Guideway Systems, original 
        implementation September 27, 1996.

    Subsequent to the adoption of Section 3029 of the Intermodal 
Surface Transportation Efficiency Act (ISTEA) of 1991, which requires 
each State to develop and implement safety plans for all fixed guideway 
transit systems, Governor Pete Wilson designated the CPUC on October 
13, 1992 as the agency responsible for ensuring California compliance 
with that Section.
    On December 29, 1995, the Federal Transit Administration (FTA) 
issued 49 Code of Federal Regulations Part 659, Rail Fixed Guideway 
Systems: State Safety Oversight. The Rule required States to oversee 
the safety of rail fixed guideway systems through a designated 
oversight agency. The Governor's designation of the CPUC fulfilled this 
requirement. This rule was revised by the Federal Transit 
Administration, effective May 1, 2006.
    The CPUC has both State and Federal obligations, and the authority 
to enforce both State and Federal law in the pursuit of rail transit 
safety.

Rail Transit Safety Section
    The CPUC currently has the following 20.5 person-year positions 
dedicated to the rail transit safety program:

    One-half of a Program Manager's time

    One Program and Project Supervisor

    Two Senior Utilities Engineer Supervisors

    One Senior Transportation Operators Supervisor

    One Senior Utilities Engineer Specialist

    One Regulatory Analyst

    Three Railroad Inspectors

    Eleven Utilities Engineers

    Rail Transit Safety staff performs the following functions:

    Conducts triennial safety and security reviews of the rail 
        transit systems, performing four audits each year, which covers 
        the 12 agencies in the 3-year period.

    Approves rail transit System Safety Program Plans.

    Provides safety certification for new rail transit agency 
        systems or new extensions on existing agency systems.

    Audits System Security Plans.

    Performs accident investigations.

    Writes and publishes accident investigation reports for the 
        more severe accidents.

    Initiates and/or supports CPUC rule promulgation. The 
        Commission currently is considering new regulations that the 
        staff has drafted to ban personal electronic device use by 
        safety-sensitive rail transit personnel. The Commission 
        currently is also formally considering ``roadway worker 
        protection'' rules for rail transit wayside employees.

    Initiates and/or supports formal Commission safety 
        investigations. Past examples include:

       Bay Area Rapid Transit (BART) Tunnel Fire--1979

       BART Derailment at A05 Interlocking--December 17, 1992, 
        CPUC Case 9867

       San Francisco Municipal Transportation Authority (MUNI) 
        State Safety Oversight

       San Francisco International Airport AirTrain Collision 
        at Storage Yard--August 4, 2002

       San Francisco International Airport AirTrain System 
        Safety Program Plan and Regulatory Authority--Investigation 02-
        07-014

    Conducts routine inspections of track, equipment, and 
        signal and train control systems.

    Conducts operations compliance observations.

    Participates in rail transit agency internal safety audits.

    Community outreach through staff participation in Operation 
        Lifesaver, the national rail safety education organization.

Proposed Public Transportation Safety Program Act of 2009
    The proposed Public Transportation Safety Program Act of 2009 will 
change the Federal-State relationship regarding rail transit safety 
oversight and regulation. From the material provided us for this 
hearing, we understand that the proposed new regulatory structure 
would:

    Eliminate the statutory prohibition against the imposition 
        of safety standards that has been in law since 1965.

    Require the Secretary of Transportation to establish and 
        enforce minimum Federal safety standards through the Federal 
        Transit Administration (FTA) for rail transit systems not 
        already regulated by the Federal Railroad Administration. In so 
        doing, the Act also provides the Secretary the option to 
        establish a safety program for public transportation bus 
        systems.

    Give each State a choice of assuming Federal enforcement 
        authority or ``opting out'' with the FTA taking the enforcement 
        role for States that ``opt out.''

    Require States that choose to assume Federal enforcement 
        authority to demonstrate that they have an adequate number of 
        fully trained staff to enforce Federal regulations, have been 
        granted enforcement authority under State law, and have 
        sufficient financial independence from any transit systems 
        under their purview.

    Provide Federal assistance to participating States to cover 
        the salary and benefit costs, as well as the training, 
        certification and travel costs of the State agency in 
        overseeing and enforcing Federal transit safety regulations.

    Authorize State agencies participating in Federal 
        enforcement to (1) conduct inspections, investigations, audits, 
        examinations, and testing of a public transportation system's 
        equipment, facilities, rolling stock, operations, and persons 
        engaged in the business of a public transportation system, (2) 
        issue reports, subpoenas, and discovery requests, and (3) 
        conduct research, development, testing, and training.

    Create nationally uniform Federal regulations, considering 
        existing industry standards to the extent practicable.

    Allow States to establish more stringent safety standards 
        than the Federal standard.

    The CPUC's Consumer Protection and Safety Division supports the 
Administration's proposed regulatory initiative. We understand that the 
intent of the proposed Public Transportation Safety Program Act of 2009 
(Act) is to preserve the well-functioning State rail transit safety 
programs' ability to continue with full authority to raise the level of 
public rail transit safety while ensuring consistency in safety 
oversight quality in all States.
    The current proposal to create national rail transit safety 
standards has many similarities to the Federal initiative in the late 
1960s on the Nation's railroads. The Federal Railroad Safety Act of 
1970 (FRSA) created national standards for freight and passenger 
railroads, and was passed under similar conditions on the railroad that 
we find described today in the rail transit safety proposal. The CPUC 
has 39 years of experience with regulating railroad safety in concert 
with the Federal Railroad Administration (FRA) under FRSA. Originally 
created in 1879 as the California Railroad Commission, in 1911 the 
Commission began regulating railroad safety. California experienced the 
FRA regulatory scheme introduced in 1970 as a clear benefit to safety, 
but has also experienced some serious pitfalls as well.
    California's greatest concern with railroad safety regulation under 
FRSA has been in the area of Federal preemption. Fortunately, in 
contrast to FRSA, the proposed Act is being presented as not preempting 
State safety regulation above the minimum levels set by the Act. 
Whereas FRSA has thwarted attempts by the States to regulate safety 
areas on railroads, we understand that the Act as proposed will not 
preempt States from imposing their own regulations as long as they are 
at least as strict as the Federal regulations.
    Staff's view in general is that Federal-State relationship should 
be based on the relative strengths of the two levels of Government.

    Federal Government has the advantage of an economy of scale 
        for such things as research, equipment testing, and 
        promulgation of regulations that would be applicable across all 
        properties such as accident reporting, equipment 
        crashworthiness, inspector training, and system-safety program 
        plans.

    State government has the advantage of being ``on the 
        ground,'' more familiar with the systems and their different 
        situations, environments, operating conditions--such as 
        operating rules, equipment, track, geography, traffic 
        interface, and local transportation infrastructure.

    State government has the advantage of establishing 
        regulatory compliance relationships with local systems through 
        inspections and compliance follow-up.

    Federal Government has the advantage of being able to set a 
        minimum floor of safety requirements that the less safe State 
        systems must follow when the local government does not have the 
        will, authority, or resources to institute sufficient safety 
        requirements.

    State government has the advantage of being able to specify 
        the level of safety that the affected population desires and 
        funds above any minimum requirements.

    State government has the advantage of trying out new 
        regulatory innovations on a test scale.

    State governments should be able to set safety requirements that 
exceed any Federal safety requirements, either in the level of 
specification of a certain type of regulation or the level of resultant 
safety through a different type of regulation, for example, a 
performance standard versus an explicit standard.
    The FRA-State participation model has worked well in California for 
promoting freight and passenger railroad safety, and would be a good 
model for the FTA to adopt--if the lessons learned over the years since 
the Federal Railroad Safety Act of 1970 were acknowledged and adopted:

    A national minimum floor of regulations has been 
        beneficial.

    The prohibition against State regulatory promulgation has 
        been detrimental. States were expressly preempted from 
        promulgating regulations more strict than the minimum Federal 
        regulations where the subject matter was covered, and court 
        precedents have severely restricted the interpretation of 
        ``covered subject matter.'' For example, the 5th Circuit Court 
        of Appeals decision on a Texas Railroad Commission walkway 
        regulation ruled that a walkway surface adjacent to the track 
        was preempted because the subject matter was covered by the 
        Federal regulations regarding track structures. \1\ This ruling 
        did not recognize that providing a safe walkway surface for 
        brakemen and switchmen served a different safety purpose than 
        did the Federal purpose of creating a roadbed to support 
        trains. In contrast, the 9th Circuit Court of Appeals 
        recognized that similar California walkway surface standards 
        were not only important for employee safety separate from train 
        support, but that the employee walkways and track structure 
        support were different subject matters that had coexisted 
        independently for over 20 years. \2\
---------------------------------------------------------------------------
     \1\ Missouri Pacific Railroad Co. v. Railroad Commission of Texas, 
948 F.2d 179 (5th Cir. 1991), cert. denied 507 U.S. 1050, 123 L. Ed. 2d 
649, 113 S. Ct. 1943 (1993).
     \2\ Southern Pac. Transportation Co. v. Public Utility Comm. of 
State of Cal., 647 F. Supp. 1220 (N.D. Cal. 1986), aff'd per curiam 820 
F.2d 1111 (9th Cir. 1987).

    Federal regulations were often set at a ``lowest common 
        denominator'' level of safety, bringing up the safety level for 
        lagging States and systems and dropping the safety level for 
---------------------------------------------------------------------------
        achieving States and systems.

    The prohibition against State regulatory promulgation has 
        been detrimental even where the original intent was to allow 
        uniquely strict State regulation where local conditions created 
        a particular safety hazard. However, court precedent since FRSA 
        was enacted has eviscerated the original intent of the Act to 
        allow the States to adapt regulations to local conditions. For 
        example, after a severe derailment and toxic spill that 
        poisoned the Sacramento River for 40 miles, the CPUC adopted a 
        track standards regulation at the Cantara Loop in Northern 
        California. The new State standards exceeded the Federal track 
        standards to provide greater track strength and derailment 
        resistance at this uniquely dangerous steep curved part of the 
        mountain grade on a bridge over the river. The railroad even 
        stated in formal testimony that the increased strengthening was 
        needed to prevent derailments at that site. Even so, the 9th 
        Circuit Court ruled that California could not adopt such a 
        stricter regulation, \3\ and to-date, the FRA has not done so.
---------------------------------------------------------------------------
     \3\ Union Pac. R.R. v. Cal. Pub. Util. Comm'n, 346 F.3d 851 (9th 
Cir. 2003).

    The 50-percent Federal funding for State participation 
        inspectors, since discontinued, was essential in getting State 
---------------------------------------------------------------------------
        inspection programs started.

    States can often adopt NTSB safety recommendations 
        immediately, whereas a nationwide regulatory proceeding could 
        delay safety improvements.

    Federal economy-of-scale resources have been beneficial. 
        For example, inspector and investigator training and the 
        subsequent certification by the FRA have greatly benefited the 
        California railroad safety program.

Key Elements for Regulatory Reform
    CPUC staff believes that the following elements should be 
considered in the new Federal-State safety regulatory structure.

  1.  Expand FTA jurisdiction to include authority to develop and 
        impose minimum safety standards.

  2.  Maintain State authority to impose greater rules/regulations; do 
        not preempt State authority but allow for more stringent rules/
        regulations than Federal minimum standards.

  3.  Funding for State programs. Funding should be allocated for the 
        cost of operating the State program, including salary and 
        benefits of State staffing and actual expenses in executing 
        rules/regulations.

  4.  State oversight program needs. Number of staff positions should 
        be equitably established using metrics such as route miles and 
        number of rail transit agencies regulated. Consideration should 
        be given to specific needs of States with interstate systems. 
        Staffing levels should include sufficient staff positions to 
        also oversee rail transit agencies that do not participate in 
        FTA funding programs. Safety oversight should not be linked to 
        funding as criteria for that oversight. The following positions 
        should be funded:

      a.  Program manager

      b.  Engineering staff (licensed professional engineers with 
        discipline specific training: mechanical, electrical, traffic, 
        civil)

      c.  Discipline specific inspection staff (operating practices, 
        track, signal and train control, motive power and equipment, 
        hazard management)

      d.  Analytical staff

      e.  Administrative staff

  5.  FTA should establish criterion for State safety and security 
        oversight programs. Criterion should dictate that designated 
        State safety and security oversight agency be separate from 
        agencies that promote rail transit use, and administer grants 
        and funding for regulated rail transit agencies. Safety 
        programs housed within State departments of transportation may 
        not receive support needed for the program as those agencies 
        predominately focus on highways and funding programs. 
        Therefore, we recommend that the SSO program be housed in an 
        agency whose mission is dedicated to safety and segregated from 
        promotion of rail transit usage and funding and/or 
        administration of funds.

  6.  Compensation levels for State staff should be competitive with 
        private industry in order to recruit and retain expert staff.

  7.  Discourage the use of contractors for safety and security reviews 
        and other State responsibilities. Support development of staff 
        stability and institutional expertise to efficiently and 
        comprehensively execute oversight responsibilities, minimizing 
        the need for consultant/contractors and the resultant loss of 
        expertise and function when contracts expire.

  8.  Training for State managers and staff. Robust training and 
        certification program fully funded by FTA is essential to the 
        success of the program. Course curriculum should include all 
        aspects of rail transit industry technology as well as 
        regulatory procedures and jurisdiction. Discipline specific 
        training and certification for inspectors is necessary to 
        provide the skills set necessary to conduct efficient 
        oversight. Training should include, but not be limited to:

      a.  Industry specific technical training

      b.  Investigative techniques

      c.  Report writing, digital photo documentation

      d.  Performance measurements

      e.  Threat and vulnerability analysis tools

      f.  Security sensitive information training

      g.  Auditing techniques

      h.  Drug and alcohol program

      i.  Fitness for duty

      j.  Evaluation of the structure and effectiveness of system 
        safety program plans

      k.  Safety culture

  9.  Credentialing and background checks for State employees. Safety 
        and security oversight is closely linked with the essential 
        characteristics of the systems that will fall within this 
        regulation. Safety certification and day-to-day oversight 
        activities may expose rail transit agencies to vulnerability if 
        those effecting the Federal and State rules and regulations are 
        not properly vetted and trained in security matters. The 
        Department of Homeland Security (DHS) is equipped to continue 
        its role in the prevention of terrorism and that this element 
        should continue to reside within that segment of the Federal 
        Government. However, safety is closely linked to security in 
        many elements. Therefore, it is essential that State employees 
        are fully vetted and cognizant of security elements associated 
        with intentional harm to public transportation systems.

  10.  States should have authority to mark documents as security 
        sensitive information to ensure that security sensitive 
        information is protected from public disclosure. The current 
        regulations in Title 49 Code of Federal Regulations Part 659 
        extend that authority only to the rail transit agencies and not 
        the State safety oversight agencies. The rule mandates that the 
        States oversee the agency(s) security program plans and conduct 
        triennial reviews of those programs but has no provision to 
        protect these documents from being released in the public 
        domain.

  11.  Investigative authority for States. As illustrated by the recent 
        banning of State safety oversight staff from the Washington 
        Metropolitan Transportation Authority (WMATA) from trackside 
        inspections it is imperative that States are vested with full 
        investigative authority. The authority relegated to NTSB 
        inspectors might serve as a model for this authority.

  12.  For States without relevant subpoena authority, establish 
        authority in Federal regulation for use in accident 
        investigation and other records and data needs. For those 
        States with such authority, allow enforcement under both 
        sources of authority.

  13.  Civil penalties and individual agency fines for willful 
        violations of safety-critical rules/regulations should be 
        included in new regulations. Enforcement tools are vital to a 
        successful program. These penalties should include compliance 
        with Federal and State regulations as well as rules and 
        procedures established by individual rail transit agencies. 
        Current regulations allows for FTA to withhold 5 percent of 
        formula funds from a State that is not in compliance. Those 
        States with multiple rail transit agencies are reluctant to 
        report infractions as the monies are withheld from the State 
        and not the egregious agency only. States need a robust 
        citation/violation program that can easily be executed.

  14.  The regulation should include a licensing/certification program 
        for safety-critical rail transit employees such as train 
        operators, control operators, and roadway workers. The FTA 
        should maintain a database to maintain status of employees and 
        issue the license/certification. This program would provide an 
        essential enforcement tool if tied to specific safety critical 
        regulation/rule infraction that may result in employee 
        forfeiting license/certification with a progressive time and 
        training element.

  15.  States managers should be at the table for all research and 
        development projects, including the development of industry 
        standards with the American Public Transportation Association 
        (APTA), Volpe National Transportation Systems Center, 
        Transportation Research Board, and other academic research 
        entities. Completed products should be readily available to 
        States.

  16.  Regulatory reform should not depend on APTA standards. 
        Consideration must be given to the conflict-of-interest of 
        APTA. This organization serves as the lobbying organization for 
        the industry. While APTA deserves much credit for creating 
        consensus-based standards and guideline development, safety-
        focused independence is lacking. States are generally not 
        members of APTA and have limited input into product 
        development. FTA should develop its State safety and security 
        oversight program independent from APTA. APTA standards and 
        guideline development processes are often cumbersome to 
        complete, often taking several years to reach consensus before 
        being published. APTA should be commended for its 
        accomplishments, but existing standards and guidelines should 
        be adopted outright.

       These standards should be used as reference materials in 
        developing Federal minimum standards, and should be fully 
        vetted with State oversight managers. The current partnership 
        between the FTA and APTA should be expanded to include all 
        States oversight agencies to capitalize on the benefits of this 
        organization.

  17.  An organization that includes FTA, State, industry and labor 
        organization representatives should be developed to offer a 
        platform for idea and information sharing. Such an organization 
        could collectively develop standards, guidelines, and best 
        practices for the industry. State participation in this 
        organization should be funded by the FTA.

  18.  Information sharing is essential to a successful program. States 
        should be included in communications from FTA to stakeholders, 
        both from the FTA headquarters and the FTA regional offices. 
        States should be included in both safety and security 
        communications. Too often FTA efforts are focused on funding 
        alone--safety and security should be elevated to a higher 
        priority level.

  19.  FTA should establish fitness-for-duty standards for rail transit 
        employees who perform safety critical duties, including 
        wellness programs, annual physical examination requirements, 
        and fatigue management.

  20.  The FTA should establish and fund project management oversight 
        contractors (PMOC) for State use in safety certification 
        projects--throughout conceptual stages and the life of the 
        project. These resources should be separate from the FTA region 
        contractor list to avoid conflict of interest.

  21.  Standardize reporting thresholds and guidelines between 49 CFR 
        Part 659, National Transportation Database (NTD) and the 
        Research and Innovation Technology Administration (RITA). 
        Establish Web-based reporting forms for both States and rail 
        transit agencies to minimize workload. Include employee 
        accident data in the reporting thresholds.

  22.  FTA should establish an interactive database or expand the NTD 
        to assist States and rail transit agencies in their accident 
        trend analyses, accident prediction modeling, and hazard 
        management. Applications should include Web-based accident/
        incident/hazard notification, tracking matrices for corrective 
        actions, and document storage (e.g., audits, reviews). The 
        database should accommodate queries for proactive trend 
        analysis and incorporate GIS technology. States should have 
        access to all data.

  23.  Reorganize FTA staff. Safety functions should report to directly 
        to the Administrator consistent with the FTA recommendation 
        that transit agency safety staff report to the chief executive 
        office of those agencies. Add resources to Federal safety staff 
        and utilize FTA regional offices for safety oversight and 
        resources.

  24.  Link FTA grant funding to safety requirements. Establish a 
        program where safety critical infractions of an agency will 
        result in penalties.

  25.  Develop a grant program for safety-critical findings of States. 
        Provide funding for safety-critical corrective action plans 
        prompted in audits, accident investigations, random and focused 
        inspections, and NTSB recommendations.

  26.  Improve communication and coordination between regional offices 
        and States.

  27.  Establish audit standards where region, State, TSA/DHS, and 
        contractor audits are linked or related. Multiple audit 
        schedules are often repetitive and cumbersome. DHS/TSA and FTA 
        Regions should coordinate audits with State managers. A 
        coordinated effort between all agencies would be more effective 
        and reduce audit fatigue. Audit findings should be shared 
        between all Federal and State agencies with safety and security 
        oversight responsibilities of rail transit.

  28.  Quarterly meetings between FTA and State managers. An annual 
        meeting is not sufficient to maintain consistency and optimize 
        progress.

  29.  Succession planning for State oversight agency personnel, 
        particularly for the smaller State agencies. Retirements and 
        career moves can cause program disruption in terms of lost 
        institutional knowledge, expertise, and professional networks.

  30.  The security element descriptions and specifications in Title 49 
        CFR Part 659 should be enhanced. The link between safety and 
        security should be emphasized. Coordination between DHS/TSA and 
        State oversight agencies should be emphasized to better utilize 
        the skill sets of both agencies. Communications and 
        coordination descriptions should be enhanced. DHS/TSA should 
        focus on terrorism. States should focus on other security 
        issues. DHS/TSA and States should share information and 
        findings. States programs and personnel must be vetted and 
        credentialed. States should be required to maintain 
        Transportation Worker Identification Credentials (TWIC). 
        Emergency response and recovery plans development and 
        implementation should include all stakeholders, including State 
        managers.

Successes of Rail Transit Safety Oversight Jurisdiction
    Safety oversight is often reactive. Public attention is aroused too 
often only after catastrophic events and media attention. Good 
governance demands a proactive approach where there are clear standards 
and practices to identify and mitigate hazards before they become 
tragic events. Proactive safety oversight built upon a systems safety 
approach and hazard management is necessary to the advance of public 
transportation. The CPUC's mission in rail transit safety is to 
proactively ensure the safe design, construction, and operations of 
rail transit. The following sections describe some of the benefits of 
the CPUC's exercise of safety jurisdiction over rail transit agencies 
in California.

BART Automatic Train Control
    An example of the CPUC's safety experience is illustrated by its 
General Order 127, Rules for Maintenance and Operation of Automatic 
Train Control Systems--Rapid Transit Systems, which was adopted on 
August 15, 1967, before rapid transit construction was expanded in 
California. The concept for the Bay Area Rapid Transit (BART) was first 
envisioned in 1946, with engineering studies and design work beginning 
in 1963 and with construction beginning in 1964. Promulgated by the 
CPUC under the authority granted by PU Code Section 29047, \4\ General 
Order 127 ensured that safety was addressed early on in the project.
---------------------------------------------------------------------------
     \4\ California Public Utilities Code, Division 10, Transit 
Districts, Part 2, San Francisco Bay Area Rapid Transit District, 
Chapter 6, Powers and Functions of District, Article 5, Rapid Transit 
Facilities and Service, 29047 Safety appliances and procedures.
---------------------------------------------------------------------------
    Revenue service on BART commenced in 1972. Prior to the 
commencement of revenue service various tests of BART's automatic train 
control systems were conducted. Through these tests, the Commission 
staff learned that the automatic train control system could not always 
detect the presence of a single dead or unpowered car. Also, in the 
opinion of the staff, the testing of the train braking, propulsion, 
protection, and interlocking systems was insufficient. The staff 
recommended to the Commission that it not authorize full automatic 
train operations, but that the use of the established and proven manual 
block override method of operation for train separation protection and 
provide a two-station separation mode between trains.
    The Commission ordered that the, ``train control system be 
supplemented by manual override consisting of a trained operator at the 
controls of each train with a back-up of supervisory personnel at key 
stations to provide positive train control in accordance with rules to 
be agreed upon and filed with the Commission.'' \5\ The CPUC further 
mandated that the train control system be supplemented by manual 
override remain in effect until further order of the Commission. \6\
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     \5\ CPUC Resolution S-1358, August 31, 1972.
     \6\ CPUC Decision No. 81248.
---------------------------------------------------------------------------
    Subsequently, Lawrence Berkeley Laboratory, as consultant to the 
California Senate Public Utilities and Corporations Committee, 
conducted failure-mode analyses as part of an independent evaluation of 
the technical merits of the BART Computer Aided Block system. The 
objective was to reduce the two-station separation mode to a one-
station separation mode as proposed for the transbay operation and that 
the ``worst case'' failure should be an ``uncovered failure-mode,'' 
that is, the collision protection should revert to that provided by the 
basic automatic train control system in the event of a one-station 
separation failure.
    Lawrence Berkeley Laboratory (LBL) recommended several 
modifications and additions to the train control system. 
Recommendations included the establishment of zero speed gates to 
automatically stop a train in the case of a station run-through; a 
revision of computer algorithm to require positive detection of a 
released train in the block past a station platform before the release 
of a following train; the revision of the existing hardware for the 
transbay tube train-detection; integrity tests to ensure that the 
computer hardware and software actually perform their intended 
functions; abnormal operations performance tests; and a full-scale (36-
train) dynamic performance test.
    It wasn't until August 27, 1974, after staff reviewed and confirmed 
BART's installation and testing of the Sequential Occupancy Release 
(SOR) train control system \7\ and implementation of all other LBL 
recommendations, that the Commission allowed automatic train control in 
place of manual override. \8\
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     \7\ LBL-developed redundant software for train detection and train 
separation as recommended by the failure-mode analyses.
     \8\ CPUC Decision No. 83339.
---------------------------------------------------------------------------
    Subsequent to the tragic Washington Metropolitan Area 
Transportation Authority (WMATA) collision on June 8, 2009, the NTSB 
made urgent recommendations to the FTA as follows.

    Advise all rail transit operators that have train control 
        systems capable of monitoring train movements to determine 
        whether their systems have adequate safety redundancy if losses 
        in train detection occur. If a system is susceptible to single 
        point failures, urge and verify that corrective action is taken 
        to add redundancy by evaluating track occupancy data on a real-
        time basis to automatically generate alerts and speed 
        restrictions to prevent train collisions. (R-09-007) (Urgent)

    Advise all rail transit operators that use audio frequency 
        track circuits in their train control systems that postaccident 
        testing following the June 22, 2009, collision between two rail 
        transit trains near the Fort Totten station in Washington, DC, 
        identified that a spurious signal generated in a track circuit 
        module transmitter by parasitic oscillation propagated from the 
        transmitter through a metal rack to an adjacent track circuit 
        module receiver, and through a shared power source, thus 
        establishing an unintended signal path. The spurious signal 
        mimicked a valid track circuit signal, bypassed the rails, and 
        was sensed by the module receiver so that the ability of the 
        track circuit to detect the train was lost. (R-09-17) (Urgent)

    Advise all rail transit operators that use audio frequency 
        track circuits in their train control systems to examine track 
        circuits that may be susceptible to parasitic oscillation and 
        spurious signals capable of exploiting unintended signal paths 
        and eliminate those adverse conditions that could affect the 
        safe performance of their train control systems. This work 
        should be conducted in coordination with their signal and train 
        control equipment manufacturers. (R-09-18) (Urgent)

    Advise all rail transit operators that use audio frequency 
        track circuits in their train control systems to develop a 
        program to periodically determine that electronic components in 
        their train control systems are performing within design 
        tolerances. (R-09-19)

    It is possible the State oversight similar to that which required 
the redundant train control measures in California, may have prevented 
the WMATA accident.

Cell Phone Use Ban
    We contend that State Safety Oversight must be empowered with tools 
to take immediate action as necessary to ensure safety following 
accidents and/or the identification of hazardous conditions. California 
has empowered the CPUC with these tools as illustrated in the CPUC 
emergency Resolution SX-88 which prohibits the use of personal 
electronic devices by train operators. The CPUC adopted this order 
within 6 days of a commuter rail catastrophic accident where use of 
personal electronic devices is believed to be one of the most probable 
causes. At this time, the CPUC is in the process of rulemaking to 
determine if the ban should be made permanent and if so, the content 
and structure of the resultant rule.

BART Fire in the Transbay Tube
    Two days after a fire in the BART transbay tube on January 17, 
1979, the CPUC ordered that the transbay tube be closed until further 
order. \9\ The CPUC ordered that six conditions be met before 
resumption of revenue service in the transbay tube. Conditions included 
the development of a detailed evacuation plan, improvement of 
communications, provisions of an extensive public information program 
on evacuation procedures, modifications of exit doors within the tube 
to allow rapid egress, employee emergency drills, testing of emergency 
procedures, and physical modifications to hatch covers and gallery 
structures to reduce fire risk and improve ventilation capability. 
Following hearings, the CPUC allowed resumption of service in the 
transbay tube on April 4, 1979, with a stringent set of requirements 
that included:
---------------------------------------------------------------------------
     \9\ CPUC Decision No. 89902.

    The complete elimination of polyurethane materials from the 
---------------------------------------------------------------------------
        seat assemblies in cars within 270 days.

    A plan of action with a timetable to reduce fire risks 
        associated with fiberglass reinforced plastic materials used in 
        the floors, ceiling, and sidewall linings of cars, to reduce 
        fire hazard.

    Requirement for BART Board of Directors to develop a 
        detailed plan to oversee public safety in its operations with a 
        subsequent annual report to the CPUC. The plan included the 
        organization form and levels and types of manpower devoted to 
        safety.

    A detailed plan for training, practice, and repeat training 
        of train operators and safety personnel in appropriate safety 
        and emergency procedures.

    Improved communications capability for emergency situations 
        and for instruction of passengers in emergency procedures.

    Ongoing passenger safety educational programs, including 
        provisions for non-English speaking and handicapped persons.

    Directional signs within the transbay tube indicating the 
        nearest gallery door and the distance to the near alternative 
        door in the opposite direction.

    Provision of back-up emergency personnel at BART Central.

    Provision for walk-through track inspections in the event 
        of unexplained in-service train stoppages.

    Provisions for airpacks, megaphones, portable radios, and 
        other such devices for attendants on transbay tube trains to 
        facilitate the ability of train attendants to function safety 
        and efficiently outside the train in emergency conditions.

    Further studies of safety issues not fully explored, 
        including the option of a second BART employee in addition to 
        the train operator on all trains through the Berkeley tunnel.

    The submission of a proposal within 30 days of the order to 
        study the toxic effects of car combustion and the impact on 
        evacuation procedures. \10\
---------------------------------------------------------------------------
     \10\ CPUC Decision 90144, April 4, 1979

    It is notable that following the investigation of the Chicago 
Transit Authority (CTA) derailment and passenger evacuation in a tunnel 
---------------------------------------------------------------------------
environment in 2007, the NTSB made the following recommendations.

Recommendations to the FTA:

    Modify your program to ensure that State safety oversight 
        agencies take action to prompts rail transit agencies to 
        correct all safety deficiencies that are identified as a result 
        of oversight inspections and safety reviews, regardless of 
        whether those deficiencies are labeled as findings, 
        observations, or some other term. (R-07-009)

    Inform all rail transit agencies about the circumstances of 
        the July 11, 2006, Chicago Transit Authority subway accident 
        and urge them to examine and improve, as necessary, their 
        ability to communicate with passengers and perform emergency 
        evacuations from their tunnel systems, including the ability to 
        (1) identify the exact location of a train, (2) locate a 
        specific call box, and (3) remove smoke from their tunnel 
        systems. (R-07-012)

Recommendations to the State of Illinois:

    Evaluate the Regional Transportations Authority's (State 
        safety oversight agency) effectiveness, procedures, and 
        authority, and take action to ensure that all safety 
        deficiencies identified during rail transit safety inspections 
        and reviews of the Chicago Transit Authority are corrected, 
        regardless of whether those deficiencies are labeled as 
        findings, observations, or some other term. (R-07-013)

Angel's Flight Railway Company
    Another example of the necessity for strong safety oversight 
authority is illustrated in the CPUC actions following a severe 
accident that occurred on February 1, 2001, on the Angels Flight 
Railway Company. The CPUC ordered closure of the Angels Flight 
funicular after a mechanical failure caused a collision between the two 
vehicles resulting in one fatality and seven injuries.
    The Angels Flight Railway Company is a privately owned funicular 
system that was originally built in 1901 and operated until 1969 when 
it was dismantled. Beginning in 1993 the Angels Flight funicular was 
reconstructed approximately \1/2\ blocks from its original location. 
Operation resumed in 1996 using the original two cars. The system 
operates at a 33 percent grade and moves people approximately 298 feet 
from the bottom of Bunker Hill up to a commercial area.
    Restoration efforts are in progress under the close scrutiny of 
CPUC staff; however revenue service will not be authorized by the CPUC 
until all outstanding recommendations made in the CPUC accident 
investigation and those from the NTSB have been closed acceptable. It 
has become clear to the staff that two outstanding NTSB recommendations 
requiring end gates on the vehicles and an emergency ingress and egress 
walkway would not have been implemented were it not for the CPUC's 
safety certification role.

San Francisco Municipal Transportation Agency
    The San Francisco Municipal Transportation Agency (SFMTA), commonly 
referred to as MUNI, was brought under the umbrella of the CPUC's State 
Safety Oversight in 1997. During the time between 1997 and 2005, MUNI 
reported an 87 percent drop in rail transit collisions. Generic 
statewide statistics of rail transit accidents during the time period 
between 1997 and 2005 indicate an overall reduction in crossing 
collisions of 76 percent, \11\ reduction in derailments of 84 percent, 
and a reduction in serious injuries of 75 percent. However, fatalities 
during this same time period increased by 12.5 percent. The SFMTA 
system is the oldest transit system in the State and, consequently, has 
many age-related problems which the Commission continues to identify 
and works to correct.
---------------------------------------------------------------------------
     \11\ Following the enactment of the Federal Transit Administration 
final rule, Title 49, Code of Federal Regulations, Part 659, effective 
May 5, 2006, reportable crossing collisions have increased due to the 
change in the reporting criteria that mandates all accidents at 
highway-rail crossing be reported.
---------------------------------------------------------------------------
    A more recent example of proactive State safety oversight and 
hazard management practices is illustrated in the SFMTA track 
rehabilitation in its subway. CPUC inspectors identified egregious 
track conditions and mandated that SFMTA take immediate steps to return 
its tracks to a State of good repair. CPUC mandated that SFMTA not only 
correct deficiencies noted by its inspectors, but that SFMTA conduct 
ultrasonic testing and inspection of the entire rail transit system 
with a geometry car, and repair all discovered defects.

Grove Farmers Market Trolley
    The benefits of a separate proactive safety oversight program such 
as California's is important and is illustrated by an incident that 
occurred in August 2009 on a small trolley operation at the Grove 
Farmers Market in Los Angeles. CPUC staff following an on-site 
inspection made recommendation to the trolley that a park bench located 
over the tracks at the end of the line in front of the wheel stops be 
removed. The staff concern was that in the event a mechanical 
malfunction caused a brake failure, the trolley could collide with the 
bench and injure members of the public sitting on the bench. Just 2 
weeks after the removal of the bench pursuant to staff's request, a 
brake failure occurred and the trolley slammed into the concrete 
planters that had replaced the bench. Severe injuries and possibly 
fatalities had been prevented by California's safety oversight where no 
Federal safety oversight existed under current law.

                          TRANSIT SAFETY BILL































  DOT FACT SHEET--THE PUBLIC TRANSPORTATION SAFETY PROGRAM ACT OF 2009
What Does the Act Do?
    The proposed legislation does three things:

     First, the bill would authorize the Secretary to establish 
        and enforce Federal safety standards for rail transit systems 
        that receive Federal transit assistance--effectively 
        eliminating the statutory prohibition against imposing broad 
        safety standards that have been in place since 1965.

    Second, the Secretary would allow States to be eligible for 
        Federal transit assistance to hire and train State oversight 
        personnel to enforce new Federal regulations. State programs 
        must be well staffed and adequately empowered by State 
        governments to fully enforce Federal regulations in order to be 
        eligible for Federal funds.

    Third, the program would require the State agencies 
        conducting oversight to be fully financially independent from 
        the transit systems they oversee. The Federal Transit 
        Administration would enforce all Federal regulations where 
        States chose not to participate in the program or where the 
        State program is found to lack the necessary enforcement tools.

Why Rail Transit Regulation?
    The current system for Federal rail transit safety 
        oversight does not guarantee a consistent level of safety for 
        transit passengers among all transit systems in all States.

    More than 14 million passengers use rail transit systems 
        every weekday. Yet, the responsibility for their safety is 
        currently left to a patchwork of 27 State agencies with 
        inconsistent standards, inadequate powers and insufficient 
        staffing.

    While rail transit remains a safe way to travel, the Obama 
        Administration believes we must take serious steps now to make 
        it even safer and ensure that it remains safe in the years to 
        come.

Additional Details of ``The Act''
    Under the Administration's proposal, the FTA and State 
        agencies participating in Federal transit safety enforcement 
        will be authorized to conduct inspections, investigations, 
        audits and examinations, as well as test public transportation 
        systems' equipment, facilities, rolling stock, operations, and 
        persons engaged in the business of a public transportation 
        system.

    FTA will also have the authority to issue reports and 
        subpoenas, require the production of documents, take 
        depositions, and establish recordkeeping and reporting 
        requirements.

    The Secretary would establish a safety certification 
        program under which a State that chooses to participate would 
        be eligible for Federal transit assistance to carry out a 
        federally approved Public Transportation Safety program. 
        Participating States would be required to demonstrate to the 
        Secretary's satisfaction that the State agency has

       an adequate number of fully trained staff to enforce 
        Federal regulations;

       been granted sufficient authority by their governor and 
        State legislature to compel compliance by the transit systems 
        they oversee; and

       sufficient financial independence from any transit 
        systems they oversee.

    In all States where either the State agency has ``opted 
        out'' of participation or where the Secretary has found the 
        requesting State agency to be inadequate, the Secretary, acting 
        through the FTA, would enforce all Federal safety regulations.

    States would not be preempted from establishing more 
        stringent safety standards than the Federal standards, if the 
        standards meet certain criteria.

    The bill also would allow the Secretary to establish a 
        safety program for public transportation bus systems that 
        receive Federal transit assistance.

    Secretary LaHood also announced the formation of a Transit 
        Rail Advisory Committee on Safety (TRACS) that will help guide 
        the Department's rail transit safety regulations.
