Advancing Rail Safety Means Reforming a Broken Waiver Process

In a sector as industrial and heavy duty as railroading, public policy must ensure safety for employees and the public. One key to achieving continual progress is closely aligning new innovative technological best practices with daily operations. To do this, however, sometimes requires overcoming the language of existing regulations that did not contemplate the arrival of new technology-based practices. The Federal Railroad Administration (FRA) waiver process is the policy mechanism intended to allow rail operators temporary relief from such regulations.

Waivers are crucial for everything from comprehensive brake testing to operation of historic locomotives at tourist attractions. But in recent years, this process has been strained by outdated regulations and political influence.

A core issue is the testing of new rail technologies. Railroads can typically conduct tests without a waiver, but they often seek waivers when the goal is to test the technology in place of, or in comparison with, existing regulatory requirements. In other words, additive innovation, or technology plus people, is virtually always allowed. But to achieve optimal outcomes that lead to even greater safety and efficiency, different combinations and settings may be called for. For example, in 2018, BNSF railroad applied for a waiver to utilize new technology to test brake health, exempting them (under specific conditions) from regular brake inspections.

However, in recent years inconsistency and ambiguity in the waiver requirements has suppressed innovation, specifically Automatic Track Inspection (ATI) technology. To be qualified for a waiver, a railroad must demonstrate that the request is “in the public interest and consistent with railroad safety.”

ATI is not a new technology. It has been around for over 25 years, and is routinely used on rail inspection vehicles. There have been numerous studies showing that track-geometry measuring systems are effective and improve safety. Recently, railroads have sought waivers to test new iterations of the technology by placing them directly on freight trains. The idea is that regularly scheduled trains can measure the track continuously as they travel across it, decreasing the need for as many manual inspections. All Class I railroads have requested waivers from existing regulations to test or deploy technology. Zooming into just ATI, as 2021 began, six out of eight, or 75 percent of Class I railroads had a waiver to test ATI safety technologies. (Seven Class I railroads [pre-merger] and Amtrak). 

However, in 2021, the FRA began abruptly denying waivers for ATI technology. Both BNSF and Norfolk Southern had ATI waivers rejected, despite both being approved for ATI waiver extensions in the past. The FRA found that “continuation of the Test Program will not likely result in any new, significant data.” However, this goes against one of the primary reasons for having a waiver program: regulatory change.

The FRA has routinely formalized technologies and practices first tested through the waiver process, codifying them into permanent regulations after they are shown to improve or not compromise safety. In 2022, under the same leadership that denied numerous ATI waivers, the FRA amended its Safety Glazing Standards after various long-standing waivers helped prove that the change would “enhance safety, while reducing unnecessary costs.” Under the same logic, the FRA would have followed the data of ATI waivers, which clearly showed that the technology enhances safety even when reducing the number of manual inspections.

The FRA chose to suppress ATI waivers despite testing demonstrating that the systems were much safer and more effective than manual inspections alone. Between 2017 and 2019, BNSF’s ATI system found more than 200 times as many defects per mile compared to traditional visual inspections. ATI can find defects earlier in the degradation process, and the vast majority of defects found with the technology would likely not be possible with human inspectors. This allows for more time for railroads to remedy a defect before it becomes a serious issue. Put plainly, the technology can capture far more defects and far smaller defects than humans, allowing more efficient maintenance scheduling. There are likely cases where a minor defect is detected but no required maintenance is needed for many days.  

BNSF eventually appealed the FRA denial of its waiver, eventually leading to the Fifth Circuit Court of Appeals to call the FRA denials “arbitrary and capricious.” The court also said “BNSF has made evidence-based claims that ATI is safer and more efficient than visual inspection alone. The implementation of ATI pursuant to the prior waiver appears to have been an unqualified success.”

The fact that courts have sided against the FRA in its denials is telling of a waiver process gone awry. The FRA’s sudden reversal on ATI waivers is indicative of either political or a lack of transparency around bureaucratic lethargy, despite its independent mission of safety. Waiver decisions are made by the Railroad Safety Board, an administrative body within the FRA. The membership and function of the board is not publicly disclosed, and it is unclear to what extent it is made of career employees versus political appointees.

This situation highlights the need for reform to the FRA waiver process, as well as the system as a whole. The waiver process is not only outdated, but slow. Many Class I railroads seeking an ATI waiver between 2019 and 2024, experienced severe delays, including 114 days for a CN waiver, 175 days for a BNSF waiver, and one Norfolk Southern waiver that was denied 325 days after revising its original waiver submission. 

Of the six Class I railroads seeking an ATI waiver between 2019 and 2024, three of them experienced delays averaging more than 180 days.

Technology continues to evolve, but the regulatory framework hasn’t kept pace. Aii’s report details five key recommendations to improve the waiver process and promote safety and innovation:

1.  Increased transparency on the Railroad Safety Board’s membership, deliberations, and evaluation criteria would help rebuild trust in an objective, safety-driven regulatory environment.
2. Limiting political influence in technical safety decisions ensures that regulatory outcomes are based on data and consistent standards, not shifting political priorities.
3. A waiver that consistently meets established safety and performance benchmarks should be recognized as a validated practice, not treated as a temporary exception.
4. Regulatory inaction should never be the bottleneck preventing the adoption of proven safety and efficiency advancements, necessitating provisional approval for continued waivers.
5. When exceptions become the rule, it’s a clear indicator that it’s time to rewrite the rule and modernize outdated regulatory frameworks

Read the full report, Driving Regulatory Innovation for Safer Railroading

Written by Benjamin Dierker, Executive Director and Owen Rogers, Public Policy Associate