Transp. Div. of the Int'l Ass'n of Sheet Metal v. Fed. R.R. Admin.

• Citation: 40 F.4th 646
• Decision Date: 15 July 2022
• Docket Number: 21-1049
• Parties: TRANSPORTATION DIVISION OF the INTERNATIONAL ASSOCIATION OF SHEET METAL, AIR, RAIL and Transportation Workers and Brotherhood of Locomotive Engineers and Trainmen, Petitioners v. FEDERAL RAILROAD ADMINISTRATION and United States Department of Transportation, Respondents Association of American Railroads, Intervenor
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

40 F.4th 646

TRANSPORTATION DIVISION OF the INTERNATIONAL ASSOCIATION OF SHEET METAL, AIR, RAIL and Transportation Workers and Brotherhood of Locomotive Engineers and Trainmen, Petitioners

v.FEDERAL RAILROAD ADMINISTRATION and United States Department of Transportation, Respondents

Association of American Railroads, Intervenor

No. 21-1049

United States Court of Appeals, District of Columbia Circuit.

Argued February 25, 2022

Decided July 15, 2022

Lawrence M. Mann argued the cause for petitioners. With him on the briefs were Kevin Brodar and Joshua D. McInerney. James Petroff entered an appearance.

Amanda L. Mundell, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Brian M. Boynton, Acting Assistant Attorney General at the time the brief was filed, Abby C. Wright, Attorney, John E. Putnam, Deputy General Counsel, U.S. Department of Transportation, Paul M. Geier, Assistant General Counsel for Litigation and Enforcement, Joy K. Park, Senior Trial Attorney, Allison Ishihara Fultz, Chief Counsel, Federal Railroad Administration, and Rebecca S. Behravesh, Senior Attorney.

Thomas H. Dupree Jr. argued the cause for intervenor Association of American Railroads in support of respondent. With him on the brief was Kathryn D. Kirmayer.

Before: Millett, Wilkins, and Jackson^* , Circuit Judges.

Millett, Circuit Judge:

In 2020, the Federal Railroad Administration ("Administration") issued a broad-ranging rule revising the regulations governing freight railroad safety. See Miscellaneous Amendments to Brake System Safety Standards and Codification of Waivers ("Final Rule"), 85 Fed. Reg. 80,544 (Dec. 11, 2020). Two unions representing employees of freight railroads—the Transportation Division of the International Association of Sheet Metal, Air, Rail, and Transportation Workers and the Brotherhood of Locomotive Engineers and Trainmen (together, "Unions")—have petitioned for review. The Unions principally argue that the Administration fell short in numerous respects in its statutory obligation to prioritize safety in regulatory decisionmaking. They also contend that the Administration impermissibly denied them an opportunity to seek reconsideration, and that the Final Rule was untimely issued.

We agree with the Unions that the portion of the Final Rule lifting calibration requirements for certain telemetry devices did not grapple with the Administration's safety obligation. But all their other challenges fail either on the merits or for lack of jurisdiction. As a result, we grant the petition in part, deny the petition in part, dismiss the petition in part, and remand part of the Final Rule.

I

A

Federal law charges the Administration with "prescrib[ing] regulations and issu[ing] orders for every area of railroad safety[.]" 49 U.S.C. § 20103(a) ; 49 C.F.R. § 1.89(a), (b). Congress has directed that, "[i]n carrying out its duties, the Administration shall consider the assignment and maintenance of safety as the highest priority, recognizing the clear intent, encouragement, and dedication of Congress to the furtherance of the highest degree of safety in railroad transportation." 49 U.S.C. § 103(c).

To permit "industry stakeholders" to test "novel transportation technologies," Final Rule, 85 Fed. Reg. at 80,546, the Administration "may waive[ ] or suspend the requirement to comply with[ ] any part of a regulation" if doing so "is in the public interest and consistent with railroad safety[,]" 49 U.S.C. § 20103(d)(1) ; 49 C.F.R. § 1.89(a) ; see also Brotherhood of Locomotive Eng'rs & Trainmen v. Federal R.R. Admin. , 972 F.3d 83, 90 (D.C. Cir. 2020). The hope is that "[a]ctivity under a waiver of regulatory compliance may generate sufficient data and experience to support" its codification into regulation. 85 Fed. Reg. at 80,546. In the Administration's view, "[c]odifying a waiver, and thereby making its exemptions and requirements universally applicable, allows the entire industry to benefit from the regulatory relief the waiver provides[.]" Id. Congress has recently endorsed this regulatory approach. See Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, § 22411, 135 Stat. 429, 742 (2021) (codified at 49 U.S.C. § 20103(d)(4)(A) ) ("Not later than 1 year after the first day on which a waiver * * * has been in continuous effect for a 6-year period, the Secretary shall complete a review and analysis of such waiver * * * to determine whether issuing a rule that is consistent with the waiver is * * * (i) in the public interest; and (ii) consistent with railroad safety.").

B

In December 2020, the Administration issued new regulations that revised procedures for the testing, inspection, and operation of freight train brake systems. Final Rule, 85 Fed. Reg. 80,544.

To understand the regulations, some background is needed. Train brakes are controlled by compressed air. This air flows from the locomotive to each rail car through a brake pipe that runs the length of the train. To apply the brakes, a train's engineer uses the locomotive's brake valve to release air from the brake pipe. The consequent reduction in air pressure causes air stored in reservoirs in each car to enter the car's brake mechanisms, pressing the brake shoes against the wheels. To release the brakes, the engineer severs this connection by positioning the brake valve to feed air back into the brake pipe, stabilizing the brake pipe air pressure. See generally Amendments to Brake System Safety Standards Governing Operations Using an Electronic Air Brake Slip System ("Proposed Brake Amendments"), 86 Fed. Reg. 3,957, 3,959–3,960 (proposed Jan. 15, 2021) ; Railroad Power Brakes and Drawbars, 50 Fed. Reg. 35,640, 35,641 (Sept. 3, 1985).

The 2020 Final Rule made a panoply of changes to the Administration's brake system safety regulations. At issue in this case are the Final Rule's revisions to (i) brake testing and inspection requirements and (ii) the rules governing so-called end-of-train devices.

Railroad brake systems must, by law, be tested regularly. A comprehensive brake test, which is known as a Class I initial terminal inspection, is required when a train has been "off-air"—disconnected from a source of compressed air—for a specified period of time. 49 C.F.R. § 232.205(a)(3). The Final Rule increased from four to 24 hours the maximum permissible off-air time before a new Class I brake test is required. Final Rule, 85 Fed. Reg. at 80,553.¹

Among other things, Class I tests measure the leakage of air

from the brake pipe. 49 C.F.R. § 232.205(c)(1). In trains with multiple locomotives—so-called "distributed power trains"—each locomotive feeds air into the brake pipe. Proposed Brake Amendments, 86 Fed. Reg. at 3,960. Likewise, some trains contain air repeater units that do the same. 49 C.F.R. § 232.5.

For trains whose brake pipes are supplied by multiple sources, the Final Rule increased the maximum permissible "air flow"—a measure of brake pipe leakage quantifying the amount of air the brake valve must feed into the brake pipe to maintain proper pressure—from 60 to 90 cubic feet per minute. Final Rule, 85 Fed. Reg. at 80,554–80,555. Air flow is measured by a device called an air flow method indicator. 49 C.F.R. § 232.5.

Individual freight cars also undergo brake tests. The Final Rule prescribed that the brakes of freight cars on shop or repair tracks need not be tested if they have received an automated test within the previous 24 or 48 months (depending on the type of test used). 85 Fed. Reg. at 80,559.

The Administration took several other relevant actions concerning brake testing.

First, it declined to classify air repeater units and air flow method indicators as locomotive appurtenances subject to the same safety standards as locomotives themselves. 85 Fed. Reg. at 80,555–80,556 (air repeater units); id. at 80,557 (air flow method indicators).

Second, the Final Rule allowed the operators of extended haul trains, which are permitted to travel up to 1,500 miles between brake tests, to forgo reporting the type of equipment such trains haul and to designate alternative testing and inspection locations for them in emergencies. 85 Fed. Reg. at 80,557.

Third, the Final Rule reworked the regulations governing brake testing and inspections for tourist, scenic, historic, and excursion railroads, which generally use older, heritage rail cars and locomotives. 85 Fed. Reg. at 80,562–80,564.

The Final Rule also changed the regulation of end-of-train devices. An end-of-train device pneumatically seals the brake pipe. Proposed Brake Amendments, 86 Fed. Reg. at 3,959. Using radio telemetry, the device also communicates the air pressure level at the end of the brake pipe to the locomotive. See 49 C.F.R. § 232.403(b). The Final Rule eliminated a requirement that end-of-train devices’ telemetry equipment be calibrated at least once every 368 days. 85 Fed. Reg. at 80,561.

Certain end-of-train devices serve an additional "critical" role in brake functioning. 85 Fed. Reg. at 80,551. In an emergency, the train crew can rapidly apply the train's brakes by directing the end-of-train device to vent air from the brake pipe. See 49 C.F.R. § 232.405(a) – (c). For this system to work, though, a radio connection must be maintained between the end-of-train device's rear unit, which is attached to the brake pipe, see id. § 232.403(b), and its front unit, which transmits commands from the locomotive, see id. §§ 232.403(f), 232.405(a) ; 85 Fed. Reg. at 80,551. Under current regulations, if a rear unit loses contact with its front unit for 16 minutes and 30 seconds, the front unit alerts the crew, which must reduce the train's speed until the radio connection is restored. 49 C.F.R. § 232.407(g). In the Final Rule, the Administration rejected proposals from the Unions and the National Transportation Safety Board to reduce that time period. 85 Fed. Reg. at 80,551.

End-of-train devices also contain a lamp that is visible to trains approaching from behind. See 49 C.F.R. §...