Federal Appeals Court Rules Against BMWED in Physical Track Inspection Decision

Published: Oct 18 2019 10:27AM

A federal appeals court has ruled against the BMWED in our attempt to require BNSF to perform full visual human-conducted track inspections at the bare minimum requirement of FRA standards.

Judges from the U.S. Court of Appeals for the D.C. Circuit denied our petition against the FRA, allowing for BNSF to curtail physical track inspection to twice monthly in order to test new unmanned inspection technology.

Ruling on the BMWED’s appeal, two judges maintained that the FRA’s decision to grant BNSF a temporary suspension of the track safety standards described in 49 CFR  § 213.233(c) “is necessary to the conduct of a … test program,” “is limited in scope and application to such relief as may be necessary to facilitate the conduct of the test program,” and “is conditioned on the observance of standards sufficient to assure safety.”

We disagree that reducing the frequency of physical track inspections by trained and qualified Track Inspectors is “necessary” to test the capabilities of machine track inspection equipment. We disagree that manually inspecting track twice monthly is sufficient to assure public safety. Just a few years ago, BNSF was boasting about its inspection and derailment prevention measures, making certain to note that the company inspects “above the frequency required by the FRA,” noting that the company inspected “key routes…four times per week and the busiest main lines are inspected daily.”

Track inspectors not only take measurements, they assess a variety of interrelated track and right-of-way conditions and make judgments about the cumulative impact of all the conditions they observe; something the machines cannot do. And until the capabilities of the machines are actually evaluated, tracks will be inspected less frequently than is required by Federal track safety regulations.

“We disagree with this decision,” BMWED President Freddie N. Simpson said. “Naturally, we want our members to track inspect. It is our work, we are the best at it, and our professionalism is in the public’s best interest. BMWED members are the most-qualified and most-skilled railroad track inspectors and their expertise should not be subverted by an unproven and experimental technology.

“The BMWED wants American railroads to be safe. To have a set of human eyes inspect for defects. To know that the train your friend or family member is riding on won’t derail or the tankers that are pulling through your neighborhood will stay upright. We want a person, trained and personally-familiar with their section of the railroad, responsible for keeping us safe.”

Pres. Simpson added: “Every bit of this process reeks of its true intentions: using technology to replace skilled workers to boost corporate profits. It’s not about advancing rail safety – it’s about making money. This administration promised to bring back jobs. Yet its FRA and appointees to federal court can’t even retain the ones we have. If you want to determine if the technology works, it should be done as a supplemental inspection and followed closely and frequently by BMWED member professionals, who know their assigned track like the back of their hand. This is a bad decision for rail workers and a bad decision for the country at large. We are and will remain in opposition of this decision.”


BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION/IBT, PETITIONER v. UNITED STATES DEPARTMENT OF TRANSPORTATION AND FEDERAL RAILROAD ADMINISTRATION, RESPONDENTS