In a decision issued December 28, 1999, the United States Court of Appeals for the District of Columbia Circuit rejected the Association of American Railroads petition for review of the Federal Railroad Administration's Workplace Safety Technical Bulletin WPS-99-01. FRA's Technical Bulletin directs that when unattended red flags or other passive devices are used to demarcate working limits for roadway workers on "controlled track," trains (and other on-track movements) "must be provided with advance notification of the type and exact location of these devices."

AAR, on behalf of itself and its member roads including BNSF and UP, filed suit on March 22, 1999 asking the court to find that FRA's Technical Bulletin violated the Administrative Procedures Act and imposed new requirements concerning exclusive track occupancy.

AAR challenged the Technical Bulletin as a departure from the FRA's earlier administration of the Roadway Worker Protection Rules. If the AAR was correct, the FRA did not have the authority to issue the Bulletin without engaging in what is called "notice and comment rulemaking."

The AAR brought this petition because the western railroads objected to FRA's interpretation that the rule requires trains to be provided with the exact location of passive devices (e.g., red flags) used to demarcate working limits established to protect roadway workers on controlled track. Instead, the western railroads wanted the trains to be told of the presence of any passive device somewhere within a delineated area and instructed to proceed through that area at restricted speed.

Fortunately, the Court rejected the AAR's petition. Essentially, the Court found that the Technical Bulletin did not amount to a change in the FRA's interpretation of the Roadway Worker Protection Rules. Instead, the Court found that various letters and e-mails from the FRA prior to the issuance of the Technical Bulletin did not amount to a definitive agency position. Instead, those communications were part of the "agency's initial efforts to respond to the dispute over the meaning" of the Roadway Worker Protection Rules.

BMWE representatives met with BNSF officials at least a dozen times over the past two years in an effort to resolve the dispute surrounding interpretation and application of the rule. "Grand Lodge, together with the affected system federations, put forth a genuine good faith effort to reach a workable solution with the BNSF. When we wouldn't agree to the BNSF's unacceptable proposals for resolving the issue, the AAR filed suit, and lost," said BMWE President Mac A. Fleming said. At his direction, the BMWE intervened in this case in support of the Department of Transportation and FRA.

BMWE's Legal and Safety Departments coordinated the union's response as intervenor in the case. "Our intervention in this case was pivotal to the court's rendering of a favorable decision," said Fleming. "We've buried far too many of our members to allow AAR's challenge to these lifesaving rules to occur without mounting our own counter-challenge to the lawsuit."

At press time, it was the BMWE's understanding that the AAR had decided not to appeal the court's ruling and that BNSF and other railroads whose programs were not in compliance with FRA's Technical Bulletin would take the necessary steps to bring their programs into compliance with the law.