Last week, the National Transportation Safety Board issued an urgent recommendation to the US Department of Transportation and the US Congress to re-classify WMATA to be regulated under the authority of the Federal Railroad Administration. The NTSB usually waits until their full report on an incident is complete to make recommendations. If the preliminary conclusions from a report warrant immediate action, they will issue an urgent recommendation – this recommendation falls into the urgent category. The NTSB’s reports are thorough, but usually not released quickly (the full report from WMATA’s June 2009 Fort Totten crash was approved in July 2010). There will likely be more recommendations in the NTSB’s final report.

Looking at the NTSB’s letter, there are two distinct conclusions:

1. WMATA’s existing safety oversight is inadequate.
2. The Federal Railroad Administration has the appropriate regulatory tools to address these inadequacies, and therefore should have safety oversight over WMATA.

The letter documents the numerous occassions the NTSB has asked for strengthened safety oversight: “In general, the NTSB investigations of WMATA found that although safety program plans were in place, they were not effectively implemented and overseen.”

The curious part is the specificity of the second recommendation. Instead of suggesting that the existing safety oversight authorities through the Federal Transit Administration be strengthened to include the kinds of tools available to the FRA, the NTSB instead recommended a dramatic shift. The NTSB’s previous investigations specifically recommended that Congress act to increase safety oversight for the Federal Transit Administration:

In the NTSB’s investigation of the June 22, 2009, WMATA accident near the Fort Totten station, we called for increased regulatory oversight of rail transit properties and recommended that the DOT seek the authority to provide safety oversight of rail fixed guideway transportation systems, including the ability to promulgate and enforce safety regulations and minimum requirements governing operations, track and equipment, and signal train control systems.

Unsatisfied with both the pace of progress as well as the likelihood of resolving this conundrum soon, the NTSB is recommending shifting WMATA to the FRA’s jurisdiction as the most expedient option. Neither the legislation to expand safety oversight under the FTA, nor the region’s plans to replace WMATA’s existing safety oversight committee with the Metro Safety Commission would rise to include the regulatory tools available to the FRA:

Based on testimony from representatives of the TOC and the FTA during the NTSB’s June 23, 2015, investigative hearing on the January 12, 2015, WMATA Metrorail accident, the NTSB further concludes that neither the regulatory changes the FTA can make as a result of MAP-21 nor the proposed creation of a Metro Safety Commission will likely resolve the deficiencies identified in safety oversight of WMATA.

The only rapid transit system under FRA regulation is the PATH system connecting New York and New Jersey. Only four rail rapid transit systems that cross state lines – WMATA, the PATCO Speedline between Philadelphia and New Jersey, Metrolink in St. Louis, and PATH.

The NTSB suggests that PATH’s regulation under the FRA is due to the cross-jurisdictional nature of the service, but this doesn’t seem correct. In the NTSB’s accompanying blog post for the letter, they make the case that other transit agencies are regulated under the FRA (even though the use of the plural here is incorrect – there is only PATH):

There is precedent for the FRA oversight of WMATA that we have recommended because there are some transit agencies in this country that are currently under FRA safety oversight. For example, the FRA provides direct oversight over the New York and New Jersey PATH system instead of using state safety oversight agencies.

PATH’s regulatory jurisdiction is an anachronism. Because PATH previously shared a short section of track with the Pennsylvania Railroad, it was also considered a railroad. And while it remains under FRA jurisdiction, it only operates as a rapid transit system under several waivers that grandfather the system from FRA regulations aimed at mainline freight and passenger railroads.

Even with waivers, the impact of this unique set of regulations is substantial:

Before each run, PATH workers must test a train’s air brakes, signals and acceleration, Mike Marino, PATH’s deputy director, said in a telephone interview. When a train gets to its terminus, workers repeat the test.

In addition, every 90 days all of PATH’s rail cars undergo a three-day inspection at a facility in Harrison, New Jersey. Brakes, lights, communications, heating and air conditioning, signals and odometers are all checked, Marino said.

Many of these FRA regulations carry over from past generations of railroading. They’re extraordinarily detrimental to the progress of high-speed rail and passenger rail. This memo gives some regulatory background to the FRA’s role. It specifically discusses light rail transit operations and the potential for shared use of mainline rail tracks (as PATH used to do), and by doing so highlights exactly how many FRA regulations make little sense (by mutual agreement between the FRA and transit operators) for rail transit operations. Numerous waivers of these regulatory requirements would be required from the start.

Like PATH, WMATA is not a mainline railroad. It’s not hard to understand why the NTSB would think that the FRA’s authority to inspect, fine, and shut down non-compliant operators is necessary; but those authorities also come with a rulebook that won’t make much sense to apply to WMATA.

Ultimately, the division between what is under the FRA’s jurisdiction is almost entirely arbitrary:

FRA will presume that an operation is a commuter railroad if there is a statutory determination that Congress considers a particular service to be commuter rail. For example, in the Northeast Rail Service Act of 1981, (3), Congress listed specific commuter authorities. If that 45 U.S.C. 1104 presumption does not apply, and the operation does not meet the description of a system that is presumptively urban rapid transit (see below), FRA will determine whether a system is commuter or urban rapid transit by analyzing all of the system’s pertinent facts. FRA is likely to consider an operation to be a commuter railroad if:

• The system serves an urban area, its suburbs, and more distant outlying communities in the greater metropolitan area,
• The system’s primary function is moving passengers back and forth between their places of employment in the city and their homes within the greater metropolitan area, and moving passengers from station to station within the immediate urban area is, at most, an incidental function, and
• The vast bulk of the system’s trains are operated in the morning and evening peak periods with few trains at other hours.

Examples of commuter railroads include Metra and the Northern Indiana Commuter Transportation District in the Chicago area; Virginia Railway Express and MARC in the Washington area; and Metro-North, the Long Island Railroad, New Jersey Transit, and the Port Authority Trans Hudson (PATH) in the New York area.

Despite PATH’s history, it’s regulated by the FRA because Congress said so. The three specific criteria listed don’t particularly apply to PATH, or WMATA, or any other rapid transit system (nor some mainline rail systems that offer a high level of all-day passenger service).

A few things to note:

The NTSB can only make recommendations. The NTSB is not a regulatory agency, they are charged only with investigating safety-related transportation incidents. Their independence is by design – any regulatory agency must consider both costs and benefits to a regulation, while the NTSB’s purpose is to conduct independent investigations and offer their recommendations solely on the basis of improving safety.

This particular recommendation is for the USDOT to seek reclassification of WMATA as a ‘commuter railroad’ via congressional action. Perhaps in considering any action, Congress might consider addressing the other shortcomings in transit safety oversight.

Despite the FRA’s impact on PATH operations, it’s worth considering if additional safety inspections might help improve WMATA’s operational discipline. The FTA’s Safety Management Inspection report (the first such safety report for the FTA, under the new safety role authorized by Congress as a part of MAP-21 but deemed insufficient by the NTSB) identified several shortcomings in WMATA’s procedures and practices. Stronger safety oversight might help address those problems; the question is if the FRA is the right regulatory body and if their rulebook is the right one to use.