DV Journal

Recent news that General Motors is abandoning its $10 billion self-driving taxi initiative reminds us that some technological breakthroughs are still beyond our grasp. The freight rail industry faces the opposite problem: Tech can do more to save money and lives, but regulators have been reluctant to allow it.

The Federal Railroad Administration (FRA) has been operating at a snail’s pace to approve waivers requested by railroad companies to put available technology to work. Last month, major rail companies like BNSF, CSX and Union Pacific sued the FRA for its failure to take action on multiple waiver requests to allow them to take advantage of new train and track inspection technology.

“Rail safety is a shared responsibility, and the FRA’s unlawful delays are creating uncertainty and preventing critical advancements in safety and efficiency,” said Ian Jefferies, CEO of the Association of American Railroads.

In October, FRA proposed automated track inspection regulations to supplement visual inspections. Today’s regulations require human inspectors to walk the line or ride a truck vehicle and visually inspect things along the way. FRA does not want to change this practice.

“Workers performing visual inspections remain essential, as visual inspections check for numerous conditions beyond the scope of track geometry,” said FRA Administrator Amit Bose. “By requiring track geometry measurement system inspections in addition to the currently required visual inspections, FRA proposes to enhance safety while promoting innovation through the use of technology.”

The Alliance for Innovation and Infrastructure (Aii), an independent, nonpartisan public policy think tank focusing on infrastructure, wrote a brief calling for waivers to be approved.

“We think the action should generally be to approve these waiver requests because it is essentially an opportunity for the rail industry to implement more technology and more innovative practices that we do think the data shows lead to safety outcomes,” said Aii executive director Benjamin Dierker.

Labor unions such as the Brotherhood of Maintenance of Way Employees Division welcomed the rule. It was encouraging to see FRA consider human track inspectors. Still, Dierker said freight railroads are responsible for their upkeep and may be reluctant to invest in technology while also paying inspectors regularly for the same job.

“My position is not to say, ‘fire the inspector,’” Dierker said. “Our position is only that when the regulation sets up a prescriptive rule that says  a human inspector must walk the track and visually inspect, it intentionally gets in the way of innovative outcomes like this track inspection technology that probably wasn’t around and not even conceived of when the regulation was written.”

Marc Scribner, senior transportation policy analyst for Reason Foundation, thinks automated track inspection benefits railroad companies, rail workers and communities safe from derailments and other adverse situations.

Most of the hazards that a railroad worker experiences are in the field. By substituting technology and putting a robot in there instead of a human being, Scribner said we would see a reduction in railroad employee injuries and fatalities.

“So, this technology has direct benefits to some of the people who are opposed for economic reasons, but it has substantial safety benefits just by the potential to remove human beings from hazards in the field,” Scribner said.

For workers losing out on job opportunities, Scribner said railroads could use this technology on lower-priority tracks and reallocate workers to more troubled areas. After all, there are things humans see that machines do not detect. A track inspection sensor affixed to the bottom or side of a train will not see a downed tree or some other obstacle that is one mile up the track. Human inspectors would see those problems and act on them to avoid accidents.

The United States railroad network is the largest in the world. It sees the transportation of more than 1.6 billion tons of freight annually. That is why Dierker and others believe FRA needs to get things done with waivers and be more open to new and innovative technologies. As Dierker described it, “Good policy leads to safety but also efficiency and resilience for infrastructure.”

And if the administration refuses?

“If the current FRA doesn’t act on this in the next month, this would be the type of thing that the next Trump administration could quickly act on,” Dierker said.

From the primaries in 2016 all the way through 2020, Donald Trump was a lightning rod. All eyes were on him and his rhetoric, with little to no attention paid to the corners of the regulatory state under his executive branch. While he often touted removing onerous regulations for all Americans, much of the regulatory tinkering remained out of the headlines.

One critical regulatory question will test the administration as Trump begins his second term: What will happen at the Federal Railroad Administration (FRA)?

At the FRA, a critical issue has volleyed back and forth for over a decade. The topic is railroad crew sizes. A few high-profile incidents in the United States and Canada in the early 2010s led the FRA to promise an action on crew sizes — namely that moving trains should not have fewer than two qualified personnel onboard at a time. The engineer and conductor are vital for operational safety, the theory goes. No level of technology or material changes in operation would undermine that. 

Within a few years, the Barack Obama administration proposed a rule to mandate crew sizes on the nation’s railroads. Little quantitative data was put forward, with much of the energy behind the rule coming from union perspectives and a general gut feeling that “two is safer than one.” It took the Trump administration three years of deliberating to reverse course and pull the proposed regulation before it went into effect. 

In 2019, Trump’s FRA said, “In withdrawing (the proposed rule), FRA is providing notice of its affirmative decision that no regulation of train crew staffing is necessary or appropriate for railroad operations to be conducted safely at this time.” It said, “FRA’s accident/incident safety data does not establish that one-person operations are less safe than multi-person train crews.”

This was echoed by the independent National Transportation Safety Board, which said at the time that “there is insufficient data to demonstrate that accidents are avoided by having a second qualified person in the cab. In fact, the NTSB has investigated numerous accidents in which both qualified individuals in a two-person crew made mistakes and failed to avoid an accident.”

As an example of Trump administration deregulation (or, in this case, preventing new regulation), the FRA crew size rule focused on data and safety. It prevented government intervention that was not called for and ensured that government inaction would not result in adverse safety effects. 

Why highlight this relatively mundane policy question? Rather than a host of other deregulatory actions the administration took, this case study is interesting because of Vice President-elect JD Vance.

The notable and tragic 2023 railroad derailment in East Palestine, Ohio, took place in Vance’s backyard and led him to join fellow Ohio Sen. Sherrod Brown in advancing bipartisan legislation on railroad safety. Vance has adamantly stood by the legislation, which includes a provision on railroad crew sizes. Curiously, the East Palestine incident did not involve a single-person crew or insufficient staffing at all, making the inclusion of such a provision a real head-scratcher to those focused on limited government and data-driven regulatory measures. 

Many criticized the bill at the time as ineffective, with others arguing it merely compiled union and partisan policy preferences into a reactionary bill. The swift 26 days between the tragic derailment and the bill’s introduction in the Senate only added to these concerns. 

Many other provisions in the bill point to relevant and forward-thinking rail safety actions, and like all bipartisan legislation, compromise likely requires give and take on the specific provisions. In any case, Vance is a proponent of a bill that would codify federal crew size requirements. 

Meanwhile, since President Biden took office in 2023, the FRA swiftly reintroduced a proposed rule on crew size and pushed it all the way across the finish line. It remains unpopular and unsupported by data even after the East Palestine event. That regulatory action is now a final rule (albeit facing specific legal challenges), while the Vance-Brown Railway Safety Act is still pending. 

This presents a unique question for the second Trump term: Will the FRA regulation be removed because no new data justifies the rule, or will it remain in place given Vance’s interest in railroad safety and commitment to his home state, blue-collar backers, and union-friendly populism? The meticulous and multi-year approach to addressing the rule makes the question all the more interesting. It was not a regulation removed lightly. 

The fate of the Senate bill has little to do with the question, as the regulatory state is the focus of the question. For Trump to remove the crew size rule would be consistent with his first administration, but potentially create tension with his vice president and a bloc of voters. To leave the rule in place would undermine his deregulatory approach and make either his first administration’s FRA or his second appear political, given the unchanging data and safety record on the matter. 

Myriad regulatory questions will test the consistency of Trump’s deregulatory message and how aligned he will be with his previous administration. As the diverse coalition of voters who put him back in office watch the next administration to see if Trump truly represents their views, this seemingly niche regulatory question will be one of his first main tests.