The Washington Post | November 15, 2009
By Joe Stephens and Lena H. Sun

The Obama administration will propose that the federal government take over safety regulation of the nation's subway and light-rail systems, responding to what it says is haphazard and ineffective oversight by state agencies.

Under the proposal, the U.S. Department of Transportation would do for transit what it does for airlines and Amtrak: set and enforce federal regulations to ensure that millions of passengers get to their destinations safely. Administration officials said the plan will be presented in coming weeks to Congress, which must approve a change in the law.

The proposal would affect every subway and light-rail system in the country, including large systems in Washington, New York, Boston, Los Angeles and San Francisco.

Administration officials said they are responding to a growing number of collisions, derailments and worker fatalities on subways -- and in particular to the fatal June 22 crash on Metro's Red Line and failures in oversight that have surfaced in its wake. Those failures have been the subject of an ongoing investigative series in The Washington Post.

"After the [Metro] train crash, we were all sitting around here scratching our heads, saying, 'Hey, we've got to do something about this,' " Transportation Secretary Ray LaHood said in an interview. "And we discovered that there's not much we could do, because the law wouldn't allow us to do it."

Metro spokeswoman Lisa Farbstein said the agency had not seen details of the proposal. "The bottom line is we welcome additional safety oversight with open arms," she said.

LaHood said he expects the proposal to be welcomed on Capitol Hill, but some Republicans said Saturday night that more federal oversight might not be the answer.

"The administration is right to raise this issue, but federal regulation should only apply to systems that cross state lines," said Sen. Tom Coburn (R-Okla.), who had not been briefed on the plan.

Rep. Frank R. Wolf (R-Va.) said the proposal sounded like a credible way to fix a broken oversight system. "Without seeing the details, it would make sense," Wolf said. "Some states have done a good job, while others have not. There needs to be consistent safety enforcement."

Critical details of the plan remain unclear, including how much it would cost, where the money would come from, how the federal government would enforce its rules and whether it is equipped to carry out enhanced oversight. Existing state oversight bodies could remain in place to enforce the new regulations but would need to meet federal standards and gain federal approval.

Safety experts praised the initiative.

"It's long overdue," said Kitty Higgins, a member of the National Transportation Safety Board until August. "I applaud the secretary and his team for recognizing the gap in oversight in the current law. I hope that Congress will act on it swiftly."

Federal oversight of subways proposed

The federal government long has regulated the safe operation of airplanes, Amtrak and even ferries. But a law passed in 1965 prohibits federal regulation of subways. When that law was put into effect, there were only a handful of subways -- Metro wouldn't open its first line for another 11 years -- and lawmakers reasoned that federal oversight would hamper their growth.

As a result, rail transit operates under two very different federal systems offering disparate levels of safety oversight.

Commuter rail systems, such as MARC and the Virginia Railway Express, are subject to a long list of federal regulations and are regularly inspected by federal safety monitors.

Safety oversight of light-rail and subway systems, on the other hand, is delegated to 27 regional bodies controlled by states. Quality varies widely, as does funding and enforcement power. With a few notable exceptions, those agencies tend to be threadbare, averaging less than one staff person per agency, according to federal statistics.

The state organizations have been criticized for lacking expertise and independence. Some rely on the transit systems they oversee to supply their funding. Many lack the legal authority to force transit agencies to grant them access to equipment and documents, and cannot compel transit agencies to correct any deficiencies they identify.

For Metro, the second-busiest subway system in the nation, the monitoring body is the Tri-State Oversight Committee, which has six members but no employees, office or phone number. It also has no direct regulatory authority over Metro.

As it stands, the Transportation Department also cannot direct subway systems to adopt safety recommendations issued by the National Transportation Safety Board.

Details of the proposal

Under the administration's proposal, states that kept their oversight bodies would have to pass safety certification programs and demonstrate that they had an adequately trained staff, as well as financial independence and authority to compel compliance from systems they oversee.

States running their own programs would receive federal funds to cover salaries, training and other expenses. Federal regulations would ensure that the state programs established standards similar to those set by federal monitors.

The Federal Transit Administration would assume direct oversight for states that opt out of safety monitoring. The agency also would take over for state organizations that the administration determined to be inadequate.

If subway or light-rail systems did not meet the new safety standards, they would risk losing federal funding for capital expenditures, according to an administration official who was briefed on the plan.

Transit systems would be responsible for shouldering the cost of complying with new federal safety requirements.

The plan would also allow the FTA to issue safety regulations for bus transit systems, but officials said early efforts would focus on rail.

In August, The Post reported that Metro's supposedly fail-safe crash avoidance system had failed in March on Capitol Hill, allowing two trains to come perilously close to colliding. A few weeks later, the newspaper reported that the automatic crash avoidance system also failed in 2005, when three trains narrowly escaped what records said would have been "disastrous collisions" in a tunnel under the Potomac River. That system is a focus of the federal investigation into the cause of the June 22 crash, which killed nine people and injured 80, making it the deadliest incident in the history of Metro.

Last week, an article revealed that Metro had barred independent safety monitors from walking along live subway tracks to assess compliance with safety rules. Since the ban began, two track workers have been fatally injured on the rails.

Metro board Chairman Jim Graham said Friday that the agency is increasing supervision of safety chief Alexa Dupigny-Samuels, who denied access to the monitors.

Also last week, Sen. Barbara A. Mikulski (D-Md.) called on LaHood to investigate Metro's oversight by the committee. And Sen. Robert Menendez (D-N.J.), who chairs a transportation subcommittee, said he would hold a hearing in the next few weeks that will look into issues raised as part of the investigation.