UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


ASSN AMER RR

v.

DOT


99-1116a

D.C. Cir. 1999


*	*	*


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


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


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


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


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


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


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


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


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


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 


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.