Ass'n of Am. R.R. v. Dept. of Transp., 99-1116

• Decision Date: 28 December 1999
• Docket Number: No. 99-1116,99-1116
• Citation: 198 F.3d 944
• Parties: (D.C. Cir. 1999) Association of American Railroads, Petitioner v. Department of Transportation, et al., Respondents, Brotherhood of Maintenance of Way Employees, Intervenor
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 944

198 F.3d 944 (D.C. Cir. 1999)

Association of American Railroads, Petitioner v. Department of Transportation, et al., Respondents, Brotherhood of Maintenance of Way Employees, Intervenor

No. 99-1116

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 1999

Decided December 28, 1999

On Petition for Review of an Order of the United States Department of Transportation

Ian Heath Gershengorn argued the cause for petitioner. With him on the briefs were John Broadley, Louis P. Warchot, and Michael J. Rush.

Dale C. Andrews, Deputy Assistant General Counsel, U.S. Department of Transportation, argued the cause for respondents. With him on the brief were Nancy E. McFadden, General Counsel, and Paul M. Geier, Assistant General Counsel.

Richard S. Edelman was on the brief for intervenor.

Before: Ginsburg, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge:

Acting without notice and comment, the Federal Railroad Administration issued a technical bulletin interpreting a safety regulation the agency had issued through formal rulemaking just two years earlier. Petitioner claims that the technical bulletin abruptly departed from the agency's previous interpretation of the regulation and that it therefore required notice and comment rulemaking. We disagree. Reviewing the random and conflicting agency letters and other documents relied on by petitioner, we find no evidence of a definitive agency interpretation that could be changed only through notice and comment. We therefore deny the petition for review.

I

Congress directed the Secretary of Transportation to "prescribe regulations and issue orders for every area of railroad safety...." 49 U.S.C. 20103(a). To "carry out all railroad safety laws of the United States," Congress created the Federal Railroad Administration, also a respondent in this case. 49 U.S.C. 103(a); see also 49 C.F.R. 1.49 (delegating authority from the Secretary of Transportation to the Federal Railroad Administrator).

The Rail Safety Enforcement and Review Act of 1992 directs the Secretary to review and revise federal rules relating to railroad track safety. See Rail Safety Enforcement and Review Act 8, 49 U.S.C. 20142. Responding to that directive, the FRA conducted a study and found that from 1989 to 1993 twenty-two roadway workers were struck and killed by trains or on-track equipment. Based on these findings and the results of a similar study by a joint labor-management task force, the FRA established a federal advisory committee comprised of representatives from management, labor, and the agency to engage in a negotiated rulemaking on the subject of roadway worker safety. The advisory committee eventually produced the Roadway Worker Protection Rule, which, following notice and comment, became effective in January 1997. See 49 C.F.R. §§ 214.301-214.355.

The Roadway Worker Protection Rule establishes procedures to protect roadway workers from accidents involving trains or other on-track equipment. At issue in this case is the Rule's procedure for demarcating portions of track where railroad employees are working and on-track accidents generally occur. The Rule refers to these areas as "working limits."

The precise method of establishing working limits depends on whether the work is being performed on track that is "controlled" or "non-controlled." On non-controlled track, i.e., track on which trains may move without authorization from a dispatcher or control operator, the only acceptable method of establishing working limits is to render the area "physically inaccessible to trains at each possible point of entry." 49 C.F.R. 214.327(a). On controlled track, i.e., track on which all train movements must be expressly authorized, the Roadway Worker Protection Rule allows the track to remain accessible but requires that the boundaries of working limits be marked by certain procedures, one of which is known as "exclusive track occupancy." See 49 C.F.R. 214.321. Exclusive track occupancy requires railroads to mark the boundaries of working limits with a flagman, a fixed signal displaying "Stop," a station identified in the railroad's timetable, a clearly identifiable milepost, or, in language central to this case, any other "clearly identifiable physical location prescribed by the operating rules of the railroad that trains may not pass without proper authority." See 49 C.F.R. 214.321(c)(1)-(5). We will refer to this last option as "paragraph (c)(5)."

Railroads taking advantage of the paragraph (c)(5) option often use unattended red flags to mark the boundaries of working limits. When a train enters a segment of controlled track containing working limits, a dispatcher directs the train engineer to travel at restricted speed until the train arrives at the unattended red flag, at which point it stops and awaits instructions from the roadway worker in charge of the working limits. The Rule provides that the roadway worker in charge may not allow trains to pass the red flag and enter the working limits until certain specified steps are taken to protect the safety of roadway workers. See 49 C.F.R. 214.319(c).

The dispute in this case centers on the precise amount of information about the red flag that paragraph (c)(5) requires the dispatcher to give the train engineer. Petitioner, the Association of American Railroads (AAR), argues that paragraph (c)(5) requires the dispatcher to tell approaching trains nothing more than that they will encounter a red flag somewhere within the segment of controlled track. The FRA, supported by intervenor, the Brotherhood of Maintenance of Way Employees, reads the regulation to mean that the train engineer must be told not just that a red flag exists somewhere within the segment of controlled track, but of the flag's precise location. Without such notice, the FRA maintains, worker safety would depend entirely on trains traveling at restricted speed, the pre-Rule precaution that the agency found insufficient to protect roadway workers. See, e.g., Roadway Worker Protection, 61 Fed. Reg. 10528, 10536 (proposed Mar. 14, 1996) ("[A] blanket provision that would rely upon restricted speed to protect persons working [on] the track would not be effective."). According to the AAR, however, it is not always possible to keep a dispatcher informed of the precise location of working limits, particularly since roadway workers often move down the track, or "float," as work progresses. Notification thus requires constant radio communication, but "in the western United States ... topographical and other constraints make radio communication difficult over extended portions of the track."

Two years after issuing the Roadway Worker Protection Rule, the FRA incorporated its view of paragraph (c)(5) in Workplace Safety Technical Bulletin WPS-99-01 (January 1999). Issued without notice and comment, the technical bulletin directs that when unattended red flags or other passive devices are used to demarcate working limits, trains "must be provided with advance notification of the type and exact location of these devices."

In this petition for review, the AAR does not challenge the advance notice requirement as an unreasonable interpretation of the Roadway Worker Protection Rule. Rather, claiming that the FRA had previously interpreted paragraph (c)(5) as not requiring advance notice of precise flag location and that the bulletin amounts to an "abrupt departure" from that interpretation, the AAR argues that the Administrative Procedure Act required the agency to issue the bulletin through notice and comment rulemaking. For its part, the FRA maintains that it never ruled that paragraph (c)(5) did not require advance notice of precise flag location, that agency officials have consistently told railroads that unattended red flags and restricted speed alone do not comply with the Roadway Worker Protection Rule, and that notice and comment were not required because the technical bulletin is consistent with that position.

II

Section 553 of the Administrative Procedure Act requires "[g]eneral notice of proposed rule making," 5 U.S.C. 553(b), and that "interested persons [have] an opportunity to participate in the rule making through submission of written data, views, or arguments." 5 U.S.C. 553(c). "Interpretative rules" are specifically exempted from the Act's notice and comment requirements. 5 U.S.C. §§ 553(b)(A), (d)(2); see also Interport Inc. v. Magaw, 135 F.3d 826, 828 (D.C. Cir. 1998). Interpretative rules "simply state[ ] what the administrative agency thinks the statute means, and only remind[ ] affected parties of existing duties." General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984) (en banc) (internal quotation marks omitted). Interpretative rules may also construe substantive regulations. See Syncor Internat'l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997).

The AAR contends that the technical bulletin cannot be an interpretative rule because it "effects a change in existing law or policy." In support, the AAR relies on our recent decision in Alaska Professional Hunters Ass'n, Inc. v. FAA, 177 F.3d 1030 (D.C. Cir. 1999). There, Alaskan fishing and hunting guides challenged a Federal Aviation Administration notice that required guides to comply with FAA regulations applicable to commercial air operations. The notice abruptly reversed a previously settled practice of the FAA, which through its Alaskan Region had for decades advised guides that they need not comply with commercial pilot regulations.We agreed with the guides that the notice should have been issued through notice and comment rulemaking. "[A]ll agree[d] that FAA personnel in Alaska consistently followed the interpretation in official advice to guides and guide services" for approximately thirty years. Id. at 1032. Originating in a 1963 adjudication, that advice was longstanding, uniform, and...