Assn Amer RR v. DOT

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 1999 Decided December 28, 1999

No. 99-1116

Association of American Railroads,
Petitioner

v.

Department of Transportation, et al.,
Respondents

Brotherhood of Maintenance of Way Employees,
Intervenor

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. War-
chot, and Michael J. Rush.

Dale C. Andrews, Deputy Assistant General Counsel, U.S.
Department of Transportation, argued the cause for respon-

dents. With him on the brief were Nancy E. McFadden,
General Counsel, and Paul M. Geier, Assistant General Coun-
sel.

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 bulle-
tin 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 let-
ters 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 "pre-
scribe regulations and issue orders for every area of railroad
safety...." 49 U.S.C. s 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. s 103(a); see also 49 C.F.R. s 1.49 (delegat-
ing 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 Enforce-
ment and Review Act s 8, 49 U.S.C. s 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. ss 214.301-214.355.

The Roadway Worker Protection Rule establishes proce-
dures 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 gener-
ally 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. s 214.327(a). On controlled track, i.e.,
track on which all train movements must be expressly autho-
rized, 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.
s 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 "para-
graph (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 work-
ing 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.
s 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 para-
graph (c)(5) requires the dispatcher to tell approaching trains
nothing more than that they will encounter a red flag some-
where 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 some-
where 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 (pro-
posed 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 ra-
dio communication, but "in the western United States ...
topographical and other constraints make radio communica-
tion 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 Pro-
cedure 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 com-
ment 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. s 553(b),
and that "interested persons [have] an opportunity to partici-
pate in the rule making through submission of written data,
views, or arguments." 5 U.S.C. s 553(c). "Interpretative
rules" are specifically exempted from the Act's notice and
comment requirements. 5 U.S.C. ss 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 admin-
istrative 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 applica-
ble to commercial air operations. The notice abruptly re-
versed 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 ser-
vices" for approximately thirty years. Id. at 1032. Originat-
ing in a 1963 adjudication, that advice was longstanding,
uniform, and unambiguous. See id. at 1031. "When an
agency has given its regulation a definitive interpretation, and
later significantly revises that interpretation," we explained,
"the agency has in effect amended its rule, something it may
not accomplish without notice and comment." Id. at 1034;
see also Syncor Internat'l, 127 F.3d at 94 (stating that a
modification of an interpretative rule construing an agency's
substantive regulation "will likely require a notice and com-
ment procedure").

The AAR claims that this case is like Alaska Professional
Hunters. Just as the FAA had definitively ruled that Alas-
kan guides were not subject to commercial air regulations,
here the AAR argues that the FRA had determined that
prior notice of a red flag's precise location was unnecessary.
The AAR detects this definitive interpretation in the Road-
way Worker Protection Rule's Preamble, in an email and two
letters from agency personnel, and in the agency's own safety
manual. We find nothing in these materials, individually or
taken together, that comes even close to the definitive inter-
pretation that triggered notice and comment rulemaking in
Alaska Professional Hunters.

 To begin with, two of the documents relied on by the AAR
provide no support at all for its position. The Rule's Pream-
ble states that "working limits are delineated by flags as
specified in [paragraph] (c)(5)." 61 Fed. Reg. 65959, 65969.
As the agency points out, this language says no more than
that working limits may be marked by flags. It says nothing
about whether notice of the flag's precise location is required.
The email message, written by an FRA bridge engineer,
Gordon Davids, suggests that paragraph (c)(5) could be satis-
fied by "operating through the zone in which the red flag may
be encountered at restricted speed, looking out for the red
flag." Not only does Davids have no policy-making authority,
however, but his phrase "looking out for the red flag," like the
Preamble language, says nothing about whether the engineer
must be given notice of the flag's precise location.

Other evidence the AAR cites is somewhat more convinc-
ing. A letter to a railroad official from George Gavalla, then
Acting (now permanent) FRA Associate Administrator for
Safety, and previously a labor representative on the federal
advisory committee, states the following:

The principle behind the use of flags to establish working
limits on controlled track.... calls for all trains ... to be
aware of the existence of flags or other appropriate
signals delineating the working limits. They might not
know the exact location of those flags because the flags
might be moved as the work progresses, but they must
know that somewhere within a defined track segment
they will encounter the flags. That principle has been
faithfully captured in the text of the regulation.

(Emphasis in original.) Another letter to the same railroad
official from Gavalla's subordinate, Edward English, contains
similar language: "The use of red flags to establish working
limits ... is permissible because even though the flags may
'float' as the work progresses, trains ... know that some-
where within a defined track segment they will encounter the
red flags." The FRA's Railroad Workplace Safety manual
states:

 [A] train must be informed of the existence of working
limits.... It is not sufficient to just place flags and go
to work. However, a railroad may permit the flags to be
moved as the work progresses, so long as all trains
approaching the working limits are informed of their
existence.

Not surprisingly, the FRA interprets these items rather
differently. The Gavalla letter, the FRA tells us, mainly
concerns safety requirements for non-controlled track. Con-
ceding that the quoted language appears in a paragraph
relating to controlled track, the agency insists that Gavalla's
comment was made "in passing and to illustrate a point, [and]
he was not interpreting, nor was he asked to interpret, the
requirements of section [2]14.321, which address controlled
track." At oral argument, the agency took a different tack,
arguing that when the Gavalla and English letters said that
train engineers must know that "somewhere within a defined
track segment" they will encounter red flags, they were
referring to an extremely short "defined track segment,"
apparently meaning that advance notice that flags are within
that segment would amount to notice of the flags' location.
As for the safety manual, the FRA points out that the manual
never expressly states that red flags and restricted speed
alone are sufficient to comply with the Roadway Worker
Protection Rule. At oral argument, agency counsel added
that the manual's phrase "informed of [the flags'] existence"
should be read to imply "informed of their location."

The FRA offers its own evidence to demonstrate that it has
consistently advised the railroads that red flags and restrict-
ed speed alone are insufficient to comply with the Roadway
Worker Protection Rule. It refers to a February 13, 1998,
letter from the AAR complaining that members of the FRA
staff appear unwilling to accept the use of red flags as a
satisfactory means of marking working limits. The FRA also
points out that several reports finding that certain railroads
violated the Roadway Worker Protection Rule noted that red
flags were the only form of protection the railroads had used.

In addition, the FRA asserts that the General Code of
Operating Rules--a set of model procedures to which rail-
roads that use paragraph (c)(5) subscribe--requires certain
practices that would have the effect of providing trains with
advance notice of working limits. This is significant, the
agency tells us, because paragraph (c)(5) expressly incorpo-
rates "the operating rules of the railroad." 49 C.F.R.
s 214.321(c)(5).

We are not at all sure what the various and sundry bits of
evidence marshaled by the parties tell us about the meaning
of paragraph (c)(5). To be sure, some of the evidence,
particularly the Gavalla letter, seems to support the AAR's
position, and we find ourselves unconvinced by the agency's
efforts to explain the letter away as, among other things, the
railway equivalent of judicial dictum. We are equally under-
whelmed by the agency's own evidence. Although the viola-
tion reports do note that red flags were the only form of
protection used in some cases, not one of the reports states
that the Rule requires advance notice of the red flag's loca-
tion. The AAR's February 13 letter does indicate, as the
agency points out in its brief, that the "AAR expressed its
awareness of, and opposition to, how [the] FRA was inter-
preting its rule on these issues." But at oral argument, the
AAR explained that it wrote the letter precisely because it
believed that agency officials were departing from their prior
interpretation of the Roadway Worker Protection Rule.

Even interpreting the evidence in the light most favorable
to the AAR, however, we think it is quite clear that the FRA
never adopted a definitive interpretation of paragraph (c)(5)
that it could change only through notice and comment rule-
making. Although the AAR has unearthed some documents
that seem, albeit sometimes vaguely, to support its argument
that the agency--or at least some of its employees--may
have interpreted paragraph (c)(5) as not requiring notice of
precise flag location, none of those documents even comes
close to the express, direct, and uniform interpretation pres-
ent in Alaska Professional Hunters. Also, unlike Alaska
Professional Hunters, where the regional office's position was

reflected in official agency adjudications holding that Alaskan
guides need not comply with commercial pilot standards, see
177 F.3d at 1031, 1032, nothing in this record indicates that
the FRA ever held that the Roadway Worker Protection Rule
did not require advance notice of red flag location. Indeed,
as far as we can tell, prior to the technical bulletin, the issue
regarding notice of flag location had been the subject of no
official agency proceeding. In other words, this record re-
veals no "administrative common law" (this court's words in
Alaska Professional Hunters, 177 F.3d at 1035) that para-
graph (c)(5) does not require notice of precise flag location.

This case differs from Alaska Professional Hunters in
another important respect. Believing that they were exempt
from commercial pilot regulations, "Alaskan guide pilots and
lodge operators relied on the advice FAA officials imparted to
them--they opened lodges and built up businesses dependent
on aircraft." Id. at 1035. Nothing in this record suggests
that railroads relied on the Gavalla letter or other documents
in any comparable way. The AAR does not claim that its
members made large capital expenditures based on their
interpretation of paragraph (c)(5) or altered their business
practices in any significant manner. Instead, the AAR claims
that the railroads' agreement with the outcome of the negoti-
ated rulemaking was "critically dependent on their ability
(consistent with the regulations) to use red flags [alone] to
demarcate working limits." Yet the AAR points to no evi-
dence to support this assertion; all evidence in the record is
post-negotiated rulemaking. Even if true, moreover, agree-
ment to a negotiated rulemaking based on a presumptive
interpretation of ambiguous language hardly compares to the
three decades of business development that had occurred in
Alaska Professional Hunters.

To sum up, we see the record in this case quite differently
than does the AAR. We read the various letters and other
documents relied on by the AAR not as evidence of a firm
agency policy, but rather as the agency's initial efforts to
respond to the dispute over the meaning of paragraph (c)(5)

that flared up shortly after the Roadway Worker Protection
Rule was issued. As one would expect when agency person-
nel face controversies of this kind, their responses were often
ambiguous and incomplete. Not until the agency issued the
technical bulletin was the controversy officially and definitive-
ly resolved. If, as the AAR urges, the record in this case
reflects a definitive interpretation of paragraph (c)(5), it
would mean that an agency's initial, often chaotic process of
considering an unresolved issue could prematurely freeze its
thinking into a position that it would then be unable to change
without formal rulemaking. Not only would this blur the
distinction between definitive agency action and informal,
uncoordinated communications, it would seriously hamstring
agency efforts to interpret and apply their own policies. The
Administrative Procedure Act requires no such result.

III

In the final section of its brief, the AAR argues that the
technical bulletin is "substantively invalid ... because the
FRA's abrupt departure from its contemporaneous and con-
sistent construction of the exclusive track occupancy provision
is arbitrary and capricious." Except for the label "substan-
tive," we see no difference between this claim and the proce-
dural argument that we rejected in section II. The petition
for review is denied.

So ordered.