FRA slows Class I railroad implementation of improved track and train inspections

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WASHINGTON – In the wake of the disastrous hazardous materials derailment last year in East Palestine, Ohio, the Federal Railroad Administration has repeatedly said it’s doing everything it can to improve rail safety.

Yet under Administrator Amit Bose the FRA has stymied Class I railroad efforts to combine automated track and equipment inspections with traditional visual inspections in ways that weed out the highest number of defects that can cause derailments.

Railroads are permitted unlimited use of automated track inspection systems that rely on lasers, machine vision, and other technology to find track geometry defects. But without a waiver from the FRA, railroads cannot simultaneously scale back the required frequency of visual inspections of main lines where the automated systems are deployed.

Class I railroad pilot programs have shown that the track defect rate is lowered significantly through a combination of frequent automated or autonomous track inspection and a reduced visual inspection schedule that allows track inspectors to focus their efforts on switches, diamonds, and rail joints.

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A BNSF Railway pilot reduced the track geometry defect rate by 63% on the Southern Transcon between Los Angeles and Chicago. A Norfolk Southern inspection test program reduced the track defect rate nearly fivefold on its Blue Ridge Division between Norfolk, Va., and Portsmouth, Ohio.

But the FRA turned down both railroads’ requests to expand their programs systemwide.

Similarly, BNSF and Union Pacific have sought to expand the territories covered by waivers that allow unit trains to bypass intermediate brake inspections when cleared by wayside wheel temperature detectors.

BNSF’s test program is 10 times more effective at finding brake system defects than the traditional visual inspection in yards. In UP’s case, the wheel temperature detectors found three times more brake defects than inspections performed by carmen. Yet the FRA has not acted on BNSF’s request. And it rejected UP’s petition.

They are among the instances where FRA has failed to act on or rejected freight railroad petitions for waivers. Several waiver requests have been pending for more than 18 to 24 months — despite regulations requiring the FRA to issue decisions within nine months. Some existing waivers, meanwhile, have simply been allowed to expire.

And, in a departure from longstanding FRA practice, a political appointee is now involved in waiver decision-making. Previously the Railroad Safety Board waiver reviews were handled by the FRA’s career safety professionals, who acted independently and made decisions solely on the basis of safety.

Now, in some instances the recommendations of staff safety experts are ignored due to political considerations, according to people familiar with the matter. If rail labor opposes a waiver, the petition is rejected or ignored, they say.

The FRA’s proposed rulemaking on safety waivers, introduced last week, seems to confirm this approach.

In order to pass FRA muster, a waiver request must be deemed in the public interest and consistent with rail safety. The proposed rule aims to define those terms for the first time. “To show that a proposal is ‘in the public interest,’ FRA proposes that a petitioner could provide evidence that the regulatory relief requested would not eliminate jobs or eliminate required visual inspections, but would add additional positions, or improve the existing positions,” the rulemaking says.

The Transportation Trades Department of the AFL-CIO welcomed the proposed rule changes.

“This proposal is a huge win for public safety and the rail workforce. For years, rail labor has fought to end the rubber stamping of waivers requests from the rail industry,” TTD President Greg Regan says. “This rulemaking addresses our concerns about the current status quo process by establishing stronger definitions and standards to determine if these requests are truly consistent with safety and in the public interest. The proposed changes would also improve consultation with workers and unions, among other stakeholders, and hopefully improve safety overall.”

But critics call this a 21st century version of union featherbedding. The irony is that because the automated inspection systems find significantly more defects, they often create more work — not less — for track and freight car repair workers whose roles can be shifted from finders to fixers, the railroads say.

FRA regulations spell out how often railroads must inspect various classes of track and equipment. The Association of American Railroads contends those regulations, which were created in 1971, are outdated.

“Despite the success of the ATI programs, FRA is impeding the forward safety progress of the industry’s ATI programs and the accompanying long overdue regulatory reforms,” the AAR says. “In 2021, FRA let one of the ATI test programs expire, delayed action on Canadian National’s request to move to the next phase of its still-in-effect test program and denied NS’ request to continue its expired test program. In March 2022, FRA denied BNSF’s request to expand its existing waiver, as well as NS’ request to begin an ATI waiver that had been submitted a year earlier.”

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In other instances the FRA has rejected or delayed decisions on waiver petitions related to proposed operational changes or test programs. CSX, for example, wants to use Wabtec’s Trip Optimizer to automatically start and stop trains in certain circumstances. CSX sought FRA permission to use Trip Optimizer’s Zero to Zero feature in 2022. FRA has yet to reach a decision.

“CSX continues to negotiate with FRA and has regular dialog with them. CSX expects to file version three of the Trip Optimizer Zero to Zero (also known as Air Brake Control) Product Safety Plan as soon as this week. We hope for a timely review and approval from FRA,” the railroad said in a statement.

Waivers advance safety

Waivers are essential to advancing technology in the railroad industry, says Robert C. Lauby, who served as the FRA’s associate administrator for safety between 2013 and 2019. “If you don’t have waivers where you can test technology, then you are condemned to using 50- to 100-year-old technology,” he says.

Waivers allow railroads and the FRA to collect as much data as possible, compare the results with current practices, and then update regulations or draw up new rules.

As the top professional safety official at the FRA, Lauby headed the Railroad Safety Board. “We made all decisions based on safety and preserving safety. We didn’t consider cost. We didn’t consider comments about service or other things,” he says. “It was all based on safety and whether or not safety was preserved by granting a waiver.”

Lauby’s predecessor, Grady Cothen Jr., headed the Railroad Safety Board for two decades. “We were allowed to be independent, which was consistent through administrations of both parties,” Cothen says.

The Railroad Safety Board is chaired by the associate administrator for safety or a deputy associate administrator for safety. Other members include an attorney designated by the chief counsel’s office, along with three FRA safety managers.

Under Bose, the representative from the chief counsel’s office is a Schedule C political appointee. Previously the chief counsel office representative was a staff lawyer.

It’s long been said in Washington that safety is not a partisan issue. As administrations change, the FRA’s direction tilts toward labor under Democrats and the railroads under Republicans. One thing that has remained constant during these pendulum swings, former FRA officials say, is that politics has never played a role in FRA safety decisions.

Until now. “Politics has entered the waiver decision process,” according to a former FRA official. “If labor objects to a waiver, the waiver is not approved.”

FRA political appointees have also in some cases ignored the recommendations of the professional safety staffers who have years of experience, according to people familiar with the matter.

Sarah Feinberg, a Democrat who served as FRA administrator in the Obama administration, says political appointees were not involved in the waiver process unless there were extenuating circumstances. “I certainly remember signing some waivers — and being required to do so as the administrator — particularly when there was an emergency, such as a hurricane approaching. I remember being briefed, discussing with my team, and signing waivers in those circumstances,” she said in an email.

“In all cases, I made sure I was on the same page as my Chief Safety Officer, but I can’t remember a single time when Bob and I ever disagreed,” she adds.

Feinberg stayed out of the regular waiver review process, however, and was not opposed to safety rule waivers.

“When I was administrator, my view of waivers was that as long as safety was protected, i.e., remained constant or was improved, I was fine with granting them,” she says. “I did not view it as my job to tell or micromanage the railroads on how to operate — my job was to insist and require that they operated safely. I was less concerned about how they got there; they just had to get there.”

FRA: We’re focused on safety

The FRA says its Safety Board continues to make decisions independently. “FRA’s Safety Board members are subject matter experts in rail safety and regulation and focus on rail safety in acting upon staff recommendations. Their decisions are subject to litigation. These subject matter experts continue to independently evaluate the safety impacts of a request and provide their technical recommendations to FRA’s Safety Board,” the agency said in a statement.

“​​FRA’s top priority is safety, and there is an ever-growing list of safety actions FRA has taken since the Biden-Harris Administration took office that demonstrates our commitment to making rail safer and not accepting the status quo,” the agency said.

FRA has broad discretionary authority to waive requirements to comply with any rule, regulation, or order upon a finding that doing so is “in the public interest and consistent with railroad safety.”

“Waivers are approvals to not follow regulations; they are a form of de-regulation. FRA considers every request for a waiver or other requests for relief on its own merits,” the agency said. “Any request to waive federal safety standards, to further deregulate an industry that some suggest is already under-regulated, requires thorough review and must clearly and fully delineate a safety need.”

The agency says that responses to waiver requests are often delayed because railroads don’t submit the necessary data, justification, and anticipated impacts that would allow the Safety Board to fully consider the petition.

The delay in reviewing waivers is not entirely new. The FRA acknowledged a brake test waiver request Norfolk Southern filed in 2012, for example, but never acted on it. But railroad officials say the current number of delayed waiver decisions is highly unusual. And former FRA officials say they always sought to turn around waiver requests within six months.

Not all waiver reviews have political fingerprints on them. The Railroad Safety Board continues to scrutinize requests for new waivers or waiver extensions and rejects them when railroads don’t dot their i’s or cross their t’s.

A case in point: The FRA in July 2022 denied Union Pacific’s request for an extension of a signal test waiver because the railroad failed to comply with at least three conditions stipulated in the original waiver.

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Safety vs. job protection

Independent railroad safety experts, railroad officials, and former FRA officials all say there’s no question that safety is improved when automated inspections are paired with scaled back visual inspections of track and equipment.

Gary Wolf, a prominent derailment investigator, says Norfolk Southern proved that its automated track inspection system, in conjunction with less frequent visual inspections, dramatically improved safety.

“NS experienced roughly a fivefold improvement in reducing the defect rate per 100 miles of track,” he says. “That would be considered a significant improvement in safety versus conventional inspection methods. As shown in any credible safety textbook, whenever you can justifiably engineer-out the human element from the risk pyramid, you will improve safety.”

Wolf is critical of the FRA’s denial of waiver and waiver extensions for track and equipment inspections. “The FRA’s No. 1 mission is rail safety, not job protection,” he says.

“While I am a solid proponent of expanded ATIP deployment, with attendant relief from visual inspections, I also realize the need for FRA regulations, and guardrails, to ensure ATIP is achieving its objectives,” Wolf says. “The FRA should be working full speed ahead on the necessary regulations to govern the deployment of ATIP and the proper analysis of the data, rather than erecting roadblocks.”

Wolf also says a strong safety case can be made for lengthening brake inspection intervals in territory where wheel temperature detection systems are in use, particularly for high-mileage intermodal and unit train fleets.

“Many of the FRA brake regulations were developed over 50 years ago, and brake valve technology has undergone three or four iterations of improvements, from the AB valve, to the ABD, to the ABDW, to the ABDX, and beyond,” Wolf says. “Brake systems today are more stable and more reliable than they were 50 years ago, enabling longer inspection intervals.”

Wayside detectors also are better at spotting brake defects.

“Hot/cold wheel detectors provide an actual condition-based assessment of brake system performance, versus a static, in-the-yard inspection. This is a far superior method to detect brake defects versus a visual inspection,” Wolf says. “A review of the BNSF test data showed that the number of brake defects detected by hot/cold detectors increased by a factor of a hundred versus visual inspections. That is a strong safety case, and additionally the waiver study had the full support of the Brotherhood of Railway Carmen.”

Brad Kerchof, who retired in 2019 as Norfolk Southern’s director of research and tests, says that once track geometry cars are running frequently, it’s highly unlikely an inspector in a hi-rail vehicle will find a geometry defect, because inspectors cannot duplicate the high-precision, under-load measurements of a geometry car. “I’ve inspected a lot of track in my career. From my perspective as a track inspector, I much prefer the new operational approach — it would provide more time for me to focus on my problem spots because I will be spending less time riding the rails to satisfy a regulatory requirement,” he says.

The Brotherhood of Maintenance of Way Employes, which wants to maintain current track inspection regulations, says there are a number of conditions that automated inspection cannot detect.

“That’s true. Automated inspection systems don’t look for washouts, or trees in front of signals, or property encroachment. They don’t find rail surface conditions such as corrugations and rolling contact fatigue, loose joints, or many issues having to do with a turnout,” Kerchof says. “But if you know your railroad , you can still do an effective job identifying these non-track geometry problems with reduced-frequency visual inspections.”

Wolf says railroads are under competitive pressure from the trucking industry, which doesn’t pay for its fair share of highway maintenance. “As a result of this tilted playing field, railroads must strive to be cost competitive, and must strive to keep operating costs low,” he says. “ATIP is a perfect example of how railroads can not only improve track safety, but reduce the burdensome cost of visual inspections … that were mandated over 50 years ago.”

Wolf says using automated track inspection systems without a corresponding drop in visual inspections is like a toll road adopting automatic tolling while keeping toll-takers on the payroll. “You simply cannot justify the capital and operating expense of ATIP systems if you have to operate both systems in tandem,” he says.

Independent rail analyst Anthony B. Hatch agrees and says Bose is taking a Luddite approach to technology that has proven advantages. “Why would FRA object to it rather than push for it? It’s clear it’s job protection, which is not their role,” he says.

There’s no question that labor should have a seat at the table to discuss the introduction of technology, Hatch says. But by essentially granting unions veto power, the FRA is stepping into the private bargaining process, he says.

Kerchof, however, wonders if railroads would bow to cost pressures and make deep cuts in track inspector ranks if they were allowed broad leeway to reduce the frequency of visual inspections.

When inspection frequency is reduced from twice-weekly to twice a month, does that mean you could make a track inspector’s territory four times larger and lay off three inspectors? “That’s the extreme response to autonomous testing. And that’s just plain unacceptable,” Kerchof says. “But somewhere in the middle is a reasonable compromise.”

“The thing that I worry about is the extent to which railroads would take advantage of a reduced regular inspection schedule to reduce the number of track inspectors,” he says. “I also worry about emergency inspections — those prompted, for example, by hot weather, cold weather, or flash flood warnings, and that require an all-hands-on-deck response. How would a railroad handle the need for simultaneous track inspections with a reduced track inspection force?”

Cothen says that the spread of the low-cost Precision Scheduled Railroading operating model — and related cuts to staffing levels at shops and the maintenance of way workforce — likely has shaped the agency’s shifting approach to safety.

“If the regulator is acting a little differently, I don’t know if it’s a good thing or a bad thing, but it’s not a surprising thing,” Cothen says.

“If your focus is on short-term investors, your safety culture is going to get strangled,” Cothen adds.

A no-go for NS

The fate of Norfolk Southern’s pilot program for autonomous track inspection shows how the FRA has put barriers in front of safety improvements.

The FRA in January 2020 granted Norfolk Southern’s request that visual inspection rules be suspended on its Blue Ridge Division so that it could test the effectiveness of automated track geometry measurement in conjunction with a reduction in hi-rail inspections.

NS proposed a minimum of three valid automated track geometry measurement system, or ATGMS, inspections per month, plus twice-monthly mainline visual inspections, down from twice weekly. Sidings would be tested once a month. Additional inspections would take place, such as weather-related inspections, track work planning inspections, inspections after derailments.

The test program using the railroad’s home-built, locomotive-mounted sensor systems was a success, NS said. Visual inspections were scaled back gradually in each phase of the three-phase test.

“In all phases of the test … the defects found during the Test Program were almost always discovered by the ATGMS rather than by human track inspectors, demonstrating the effectiveness and reliability of the ATGMS in detecting track geometry defects,” the railroad told the FRA.

The reduced frequency of hi-rail inspections allowed track inspectors to focus on special trackwork such as switches, diamonds, and joints.

“The Test Program also revealed that the reduction in manual inspections increased the effectiveness of those manual inspections for non-track geometry defects. For example, the rate of occurrence of manually detected defects in special track work increased during the program, reflecting the tendency of track inspectors to re-allocate their efforts away from the task of searching for geometry defects, and toward looking for those defect types to which they are better suited to find and effect immediate repairs. Similarly, roadbed and vegetation defects continued to be detected at acceptable rates during the Test Program,” NS told regulators.

On March 22, 2021, NS applied for a waiver to permit reduced frequency of manual track geometry inspections where an automated track geometry measurement system is in use. NS sought a five-year waiver that would cover all six divisions where ATGMS is used, noting that reduced visual inspections would not have an impact on staffing levels. NS argued that the Blue Ridge Division’s 1,042.2 track miles between Norfolk, Va., and Portsmouth, Ohio, includes weather and terrain of all types encountered on the NS system.

Some 364 days later — and three months beyond the nine-month regulatory deadline — the FRA rejected NS’s waiver request.

“Although FRA recognizes that technological advancements, such as ATGMS, are an essential element of railroads’ track asset management and safety assurance programs, FRA finds that at this time, granting NS’s request for system-wide implementation of the requested relief is not justified,” FRA said. “As FRA has noted previously, NS’s Test Program was intended as part of a first step to gather data to test whether the use of ATGMS to supplement visual inspections required under FRA’s Track Safety Standards could justify decreasing the frequency of those visual inspections. Although the Test Program was successful under the specific conditions and metrics tested, reducing visual inspections introduces a certain amount of risk. The Test Program cannot lead to system-wide reductions in the frequency of the required visual inspections without conclusive data demonstrating that those risks are effectively mitigated.”

FRA noted that the lone public comment it received on the NS waiver request was from the Brotherhood of Maintenance of Way Employes union. “BMWED recommends that FRA deny NS’s request for relief, asserting that granting the relief would adversely affect railroad safety. BMWED noted that it ‘does not feel’ that any of the test programs or waivers issued related to railroads’ ATGMS programs provide a ‘level of safety equal to the minimum safety requirements’ of FRA’s Track Safety Standards,” FRA said.

FRA also said that while its Railroad Safety Advisory Committee was seeking to develop new blanket track inspection rules, it would be inappropriate to grant the NS waiver request. “FRA finds that short-circuiting this evaluation process on individual railroads is not in the public interest and consistent with railroad safety at this time. Accordingly, FRA dismisses NS’s waiver request,” FRA said.

In May 2022, NS asked the FRA to reconsider its decision.

The railroad pointed out that when FRA approved the test program, it had determined that the Blue Ridge Division was a “reasonable proxy” for the entire NS network.

NS also argued that “it makes no sense to deny implementation of an inspection methodology that indisputably will increase safety today — on the theory that, years in the future, a committee might develop a better methodology that will lead to even greater safety gains. In other words, the question is not whether the RSAC will come up with refinements to automated track inspection methodologies that are even better than those NS is proposing; the question is simply whether the proposed NS methodologies will improve safety. The record evidence answers that question clearly.”

The railroad also said FRA contradicted itself on the need for additional data.

“FRA cannot claim that more data is needed. When it denied NS’ request to extend the Test Program, the agency did so on the basis that no more data was necessary to evaluate ATGMS performance on the Blue Ridge Division. (‘FRA finds that continuation of the Test Program will not likely result in any new, significant data.’) Having denied an extension on the basis that more Blue Ridge data is not needed, FRA cannot deny a waiver on the basis that more Blue Ridge data is needed,” NS told the FRA in a Feb. 1, 2023 letter.

The letter also pointed out that the railroad’s petition for reconsideration had been pending for more than seven months — three months past the regulatory deadline for appeals. Some 20 months later, the case is still pending.

NS still inspects its track with ATGMS but is not allowed to scale back visual inspections. Meanwhile, the FRA has said that its Railroad Safety Advisory Committee cannot reach consensus on recommendations for updated track inspection regulations — and so no updated track inspection regulations are in the works.

Brake pilot programs

Under a five-year waiver granted in 2017, Union Pacific tested the effectiveness of wheel temperature detectors, or WTD, in monitoring brake effectiveness of gondolas used in unit coal train service. The waiver permitted coal trains to operate 2,600 miles — from the Southern Powder River Basin of Wyoming to a power plant in White Bluff, Ark. — without the intermediate extended-haul brake test that otherwise would be required.

Inspections by the wayside WTD at Sheep Creek, Wyo., allowed 73% of waiver trains to bypass the 1,500-mile stationary brake test at North Platte, Neb. Yet cold-wheel alerts from the detector resulted in 33% more bad orders overall – and the detector found nearly three times as many defects than a traditional visual inspection of a stationary train.

UP in December 2021 sought a five-year renewal of the waiver. A test committee that oversaw the pilot and included representatives from the FRA, the Association of American Railroads, UP, rail labor, private car owners, brake manufacturers, wayside system suppliers, and other railroads, recommended that FRA renew the waiver.

But the test committee’s recommendation, detailed in a 39-page report, was not unanimous.

R.A. Johnson, general president of the BRC/TCU, wrote in a Dec. 31, 2021 email to the FRA that UP had significantly reduced the number of car inspectors in the waiver territory. “It has always been our position that these detectors cannot replace the trained inspectors on the property,” he wrote.

In a Feb. 7, 2022 letter to the FRA, TTD President Regan urged regulators to deny the extension. “In the five years that this waiver has been in use, UP has failed to gather and provide any evidence for review that the waiver should be renewed,” he wrote. “Without any useful data from UP’s Test Waiver Committee to support the extension, we do not believe that the continued use of WTD technology is a safe and acceptable substitute for physical inspections by trained Carmen.”

After receiving no response from FRA, UP withdrew its extension request on Aug. 25, 2022. It is among 11 waiver requests that UP had before the FRA that were either pending beyond a regulatory deadline, were denied, or withdrawn. In at least two cases, however, FRA rejected UP’s waiver extension requests because the railroad had not fully complied with the conditions outlined in the original waiver.

A court win for BNSF

BNSF Railway has tangled with the FRA on both automated track and equipment inspection programs.

A federal appeals court in in June ordered the FRA to allow BNSF to expand its automated track inspection program while simultaneously reducing the frequency of traditional visual inspections.

In 2018 the FRA granted BNSF an inspection waiver that covered seven segments of track totaling 1,348 miles on its Powder River Division in parts of rural Nebraska and Wyoming. The waiver enabled BNSF to reduce the frequency of track inspectors’ visual inspections to twice per month, weekly, or three times per week, depending on location and track classification. Inspectors were then able to spend more time focusing on trouble spots, such as switches.

In July 2020, BNSF argued that the two-year pilot was a success and sought FRA permission to expand its automated track inspection program systemwide.

“BNSF manual inspections found 4,796 geometry defects in the course of inspecting 39.2 million miles of track. Over that same period, geometry cars found 64,657 geometry defects while covering 97% fewer inspection miles,” BNSF told the FRA. “In 2019, 99.5% of the track geometry defects identified on BNSF were identified by an automated system. The data thus demonstrates that geometry cars identify track geometry defects that are otherwise not detected by walking or hy-rail inspections alone.”

The FRA partially denied that request in January 2021, saying the combination of ATI and reduced visual inspection was not yet ready to be rolled out everywhere on the railroad. But regulators did allow BNSF to expand the program to 4,635 miles of track on its busiest route, the Southern Transcon.

In July 2021 BNSF requested a waiver expansion that would cover 4,717 track miles, including the Chicago-Seattle Northern Transcon, along with the Orin Subdivision in the heart of the Powder River Basin. BNSF’s request noted that the track geometry defect rate per 100 miles inspected had been reduced 63% on its Southern Transcon in a three-month period of 2021 compared to 2020.

The Brotherhood of Maintenance of Way Employes Division, the labor union that represents track inspectors, agreed that the automated cars found more defects than visual inspections.

“However, the performance of the new cars provides no basis for a reduction in the regularly mandated manual visual track inspections, which cover a broader range of track and right-of-way conditions,” the union told the FRA in August 2021. Among them: drainage, vegetation, and roadbed issues, as well as problems with joint bars and switches. The union’s letter was the only public comment urging FRA to deny BNSF’s petition.

On March 21, 2022, the FRA agreed with the union and denied the request to expand the program to the Northern Transcon and Orin Sub. FRA said BNSF would have to take a “belt and suspenders” approach to track inspection that maintained more frequent visual inspections as required under federal regulations.

FRA’s rationale: Its Rail Safety Advisory Committee was developing “a consensus recommendation for incorporating ATI technology into the applicable regulatory framework” and “short-circuiting this evaluation process on individual railroads is not in the public interest and consistent with railroad safety at this time.”

BNSF appealed that decision to the U.S. Court of Appeals for the Fifth Circuit. The court sent the matter back to FRA and asked regulators to provide a more detailed explanation for the denial of the waiver request.

FRA then gave three reasons for the denial in a June 2023 reply to the court. First, FRA said the “public interest and railroad safety” favor addressing the matter through the Rail Safety Advisory Committee. Second, BNSF had not shown that an expanded waiver would improve rail safety. And third, “BNSF’s implementation of the current waiver does not warrant an expanded waiver at this time.”

BNSF again asked the court to overturn the FRA’s decision. While the case was pending, FRA informed the court that the Railroad Safety Advisory Committee — which consists of representatives from FRA, railroads, labor organizations, suppliers, and manufacturers — could not reach consensus. And so FRA closed out the case.

The court, in a June 21 decision, found that, “The FRA fails to provide even one rationale that survives our review.” It added: “We need not doom BNSF to an endless loop of regulatory activity.”

FRA complied with the court order and on Aug. 27 permitted BNSF to expand the track inspection program.

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Under BNSF’s Brake Health Effectiveness program, wayside detectors at two sites on the Southern Transcon and two on the Northern Transcon measure car wheel temperature as trains pass by while heading downgrade. If cold or excessively hot wheels are found, carmen know exactly where to find them when the trains stop at the next terminal. If no defects are found, the waiver allows trains to skip the required intermediate terminal brake inspection.

Between Aug. 29, 2019 and June 13, 2023, some 24,372 trains operated under the waiver. The program eliminated the need to inspect 14,959 trains, while triggering alerts for carmen to make 38,000 automatic single-car tests. Carmen then went on to make 41,092 air-brake repairs, including replacement of more than 18,000 valves. In all, the waiver allowed BNSF to eliminate 11,215 inspection hours while providing carmen with 23,144 additional hours of repair work.

Based on this success, BNSF in August 2021 asked the Railroad Safety Board to expand the existing Brake Health Effectiveness waiver to cover coal trains operating over the Pikes Peak Subdivision in Colorado and the Sandhills Sub in Nebraska. Loaded trains that pass the wayside tests would be permitted to skip extended haul inspections at Amarillo, Texas. Empty coal trains that pass the test would bypass inspection at Temple, Texas, but still undergo an extended haul inspection at the coal hub of Alliance, Neb.

More than three years later, FRA has yet to act on the request.

And earlier this year, the FRA in March sought to shut down BNSF’s 17-year-old Brake Health Effectiveness program altogether, arguing that the waiver that allows trains to skip the intermediate inspections had expired.

BNSF protested. The FRA had not acted on the railway’s June 2023 request for an extension, BNSF noted, and the agency continued to accept weekly inspection data reports from the railway.

“We also reiterate our request for prompt action on BNSF’s other waiver-related requests that are awaiting FRA decision, all of which have been pending well past the relevant deadlines for FRA action under its own regulations and are currently acting as de facto denials of those requests,” Chief Operating Officer Matt Igoe wrote in a March 20, 2024 email to Karl Alexy, the FRA’s chief safety officer.

FRA granted BNSF a temporary extension through April 22, 2024 while it continued to review comments from the SMART-TD union and the Brotherhood of Railway Carmen. On April 19, 2024, FRA granted BNSF a three-year extension. The decision came three weeks after the BRC threw its support behind the program, subject to additional conditions that would improve transparency and accountability.