The Federal Railroad Administration (FRA) has broad discretionary authority to waive or suspend the requirement to comply with any rule, regulation, or order upon a finding that doing so is in the public interest and consistent with railroad safety.  49 U.S.C. 20103(d) (Statute).  Section 22411 of the Infrastructure Investment and Jobs Act (IIJA) added paragraph (4) to the Statute.   Pub. L. 117-58 (Nov. 15, 2021).  This new paragraph, titled RULEMAKING, requires the Secretary to complete a review and analysis of each waiver issued under the Statute or suspension issued under 49 CFR Part 211, Subpart E, that has been in continuous effect for a 6-year period, to determine whether issuing a rule consistent with the waiver is in the public interest and consistent with railroad safety.   49 U.S.C. 20103(d)(4)(A)(i)-(ii).  The Secretary delegated the responsibility for conducting this analysis to the Administrator of FRA.  See generally 49 CFR 1.89.  Section 22411 requires FRA to publish its review and analysis or initiate regulatory action, to codify the waivers and suspensions. In conducting this review, FRA has identified approximately 40 longstanding waivers that FRA concluded should be codified into the regulations.  The waivers FRA identified for potential incorporation into the regulations involve the use of technology and new methods of carrying out certain regulated functions.  Accordingly, and consistent with the mandate of 22411 of the IIJA, FRA is seeking to undertake a rulemaking to incorporate the waivers into its regulations.

For example, under 49 CFR part 225, FRA would consider codifying a waiver that would permit the electronic posting of monthly accident/injury reports rather than paper reports.  Another example might include codifying a waiver, under 49 CFR part 215, that would permit a rail car, with clearly formed droplets of oil coming from a cushioning unit, to remain in service if the car’s cushioning unit is equipped with a unit condition indicator that indicates that the unit is not defective.