Therese McMillan, Acting Administrator
Federal Transit Administration
Metropolitan Washington Council of Governments
Thursday, November 12, 2015
Remarks as Prepared for Delivery
Good afternoon Chairman Euille and all board members of WashCOG. Thank you for the invitation to discuss Federal Transit Administration (FTA) actions to improve WMATA Metrorail safety and the need to expedite creation of a new State Safety Oversight Agency.
The safety of Metrorail operations is critically important to WMATA passengers, employees and the entire national capital region. The citizens of your jurisdictions and the millions of people who depend on the Metrorail system for safe travel in the region deserve a strong State Safety Oversight Program.
As you are aware, in recent years, Metrorail has experienced a number of safety lapses resulting in serious incidents, injuries and fatalities.
Under federal law, the job of providing safety oversight of rail transit agencies is the responsibility of State-led organizations. In the case of Metrorail, currently that State-led agency is the Tri-State Oversight Committee, or the TOC. However, in its existing form, the TOC lacks sufficient resources, technical capacity and enforcement authority to provide the hands-on safety oversight needed by Metrorail and demanded by passengers and employees.
For this reason, in October 2015, U.S. Transportation Secretary Anthony Foxx directed the FTA to exercise our authority and assume temporary and direct safety oversight of Metrorail from the TOC.
I want to emphasize the temporary nature of the FTA role. We are fulfilling a critical function, but we are only bridging the gap. Virginia, Maryland and the District of Columbia are responsible under federal law for establishing a new State Safety Oversight Agency for Metrorail.
Furthermore, last week Secretary Foxx sent a letter to Mayor Bowser and Governors Hogan and McAuliffe asking them to expedite their efforts and devote the necessary resources to create a new State Safety Oversight Agency.
FTA Metrorail Safety Oversight
In assuming direct safety oversight responsibility for Metrorail, FTA has three primary goals.
First, is what everyone wants—to improve Metrorail safety. While WMATA is responsible for the safety of its own operations and system, FTA will take every step to ensure WMATA is taking appropriate actions and using Federal funds toward that end.
Second, FTA will direct the TOC in its core safety oversight duties under existing federal regulations while FTA assumes the lead role for key functions of the Metrorail State Safety Oversight Program.
And third, FTA will support an expedited effort led by Virginia, Maryland and the District, and managed by WashCOG, to establish a new, fully compliant, staffed, resourced and capable State Safety Oversight Agency to replace the TOC as soon as possible.
The FTA direct safety oversight of Metrorail has a few key elements. To be clear, WMATA remains in charge of Metrorail daily operations and management and is responsible for the safety of its service and system. WMATA runs WMATA, not FTA. Under safety authorities granted under MAP-21, FTA ensures that all State Safety Oversight responsibilities are carried out for Metrorail. And, it is important to emphasize that the TOC continues to exist and is performing core safety oversight activities at the direction of FTA.
Furthermore, FTA is taking lead responsibility to ensure and verify that WMATA implements all required corrective actions approved by both FTA and the TOC. This includes all open corrective actions arising from past safety incidents and findings, and those yet to be developed as a result of closing open investigations and following from any new safety incidents or findings.
FTA will also conduct on-the-ground inspections, lead accident investigations as warranted and exercise our authority to direct the use of Federal funds received by WMATA to ensure they are used to improve Metrorail safety.
The Role of WashCOG
WashCOG plays an important role in many regional issues, particularly those related to transportation.
By creating and managing the budgets for the TOC, WashCOG ensures Metrorail safety oversight activities can and do occur.
Also, WashCOG is now the grantee for FTA grant funds provided to support State Safety Oversight Agencies. By managing this grant funding on behalf of the TOC, you enable additional resources to be directed for Metrorail safety oversight work as well as to assist with the transition to a new State Safety Oversight Agency.
Finally, WashCOG is managing the transition activities to the new State Safety Oversight Agency with Virginia, Maryland and the District, including developing a legal strategy for creating and empowering the new agency.
Your role as a catalyst can move the transition process forward and I strongly encourage you to increase your efforts and keep this issue high on the agendas of the three jurisdictions.
New State Safety Oversight Agency
Facilitating the process among the three jurisdictions is not easy. Frankly, the past cooperation and coordination issues among Virginia, Maryland and the District is a contributing factor giving rise to the ineffectiveness of the TOC. This must be overcome and the quicker the better.
Let me emphasize, under MAP-21, a State Safety Oversight Agency is a creature of state law, and it must be legally and financially independent of the rail transit agency it oversees. Also, a State Safety Oversight Agency must have investigative and enforcement authority.
These fundamental requirements are spelled out in the Proposed Rule for State Safety Oversight FTA issued in February 2015. We anticipate publishing the Final Rule in early 2016.
The key elements of the Final Rule will track very much along the lines of the statutory requirements. It would update and strengthen the federal regulatory framework to enable State Safety Oversight Agencies to better evaluate the effectiveness of a rail transit agency’s safety program.
Importantly, States must be in compliance no later than three years after the Final Rule becomes effective, but States need not and must not wait.
Timing is everything. Some outlier States are using the ”three years after the Final Rule is effective” idea as a reason to say, “What’s the rush? We don’t even know what the Final Rule says yet.”
Frankly, that is a false argument. States do not need the language of the Final Rule in order to begin to take needed actions. States can expect that the Final Rule will be substantially one and the same as the Proposed Rule and written strictly in accordance with the statutory language and requirements of MAP-21.
Let me note, moreover, there are already a number of other State Safety Oversight Agencies that are either compliant with MAP-21 or well-down the compliance track.
There are a total of 30 State Safety Oversight Agencies. Two are fully compliant (Massachusetts and California). Statutory language is sufficiently prescriptive to allow FTA to make that determination. Ten others have updated their enabling legislation to reflect MAP-21 and ten more have taken other significant action. Once the FTA Final Rule is released, all these States must do is update their Program Standards or issue updates to their administrative codes or executive orders.
The bottom line is that Virginia, Maryland and the District need to expedite transition of the TOC into a new and stronger State Safety Oversight Agency. The three jurisdictions agreed to do that in 2010 and re-affirmed that position in 2014. However, it is now Nov. 2015, and there continues to be insufficient progress.
Creating the new State Safety Oversight Agency is a complex undertaking with significant legal, administrative and organizational challenges. There is a need to make this an urgent priority and FTA is prepared to help.
FTA has and will continue to provide technical guidance and grant funding to support the effort, but the three jurisdictions, with the assistance of WashCOG, have the responsibility for standing up the new safety oversight body.
I will soon be sending a letter to WashCOG and the TOC jurisdictions requesting a meeting in early December to discuss the current status of transition activities, understand the next steps and identify where FTA might help advance the process.
I appreciate the opportunity to speak with you today and thank you for the leadership WashCOG is showing in facilitating the creation of the new State Safety Oversight Agency. You make a valuable contribution by providing the forum for progress.
As I’ve noted before, I am a regular Metrorail user. Rail transit is the safest form of surface transportation and our common goal is to make it even safer for public transportation customers. It is my firm belief that there is no reason why a new State Safety Oversight Agency can’t be created within the next year.
I look forward to our discussion and continued cooperative efforts.