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January 13, 1972

UNITED STATES of America et al., Defendants

William B. Jones, District Judge. Gesell, J., concurs. J. Skelly Wright, Circuit Judge (dissenting).

The opinion of the court was delivered by: JONES

Following the promulgation of a rule by the Federal Railroad Administration (F.R.A.) on October 22, 1970, effective November 30, 1970, which prescribed certain requirements for inspecting and testing power or train brakes by certain rail carriers, the plaintiffs brought this action seeking to enjoin and set aside the F.R.A. order promulgating the rule. The complaint also requests a declaratory judgment delineating the alleged limited authority of the F.R.A. in rule making with respect to power or train brakes. Plaintiffs and defendants have filed cross-motions for summary judgment which have been briefed and argued. *fn1"

 Prior to 1958 no agency of the Federal Government had authority to promulgate regulations applying to power or train brakes. From at least 1925 the railroads had their own rules, standards and instructions for the installation, inspection, maintenance and repair of such brakes. In 1957 bills were introduced in the House and the Senate of the Congress to confer authority on the Interstate Commerce Commission (I.C.C.) to adopt and put into effect power or train brake rules. After extensive hearings before the Senate and the House Interstate and Foreign Commerce Committees, legislation was reported and enacted by the Congress. That Act of Congress appears in 45 U.S.C. § 9. There it is provided that the Secretary of Transportation *fn2" should adopt and put into effect the current rules, standards and instructions of the railroads for the installation, inspection, maintenance, and repair of all power or train brakes. The Act further provided that those rules, standards and instructions were to remain in effect unless changed by order of the Secretary; "Provided, however, that such rules or standards or instructions or changes therein shall be promulgated solely for the purpose of achieving safety."

 Pursuant to that legislation power or train brake regulations were adopted and appear in 49 C.F.R., Part 232. In 49 C.F.R. 232.12 it is provided that trains must be given brake tests and inspections at points: (1) where a train is originally made up (initial terminal); (2) where a train consist is changed other than by adding or removing a solid block of cars with the train brake system remaining charged; (3) where a train is received in interchange by one railroad from another at the corporate boundary of those railroads. Moreover, each railroad is required to designate intermediate inspection points on its own line within a limit of not to exceed 500 miles where certain brake inspections are to be made.

 49 C.F.R., Part 211 sets forth the rulemaking procedures for F.R.A. And 49 C.F.R. 211.11 provides that any person may petition the Administrator "to issue, amend, or repeal a rule, or for a permanent or temporary exemption from any rule." Provision is made for appropriate notice, hearings, and participation by interested persons. 49 C.F.R. Part 211, Subpart C.

 Pursuant to its rule-making regulation, F.R.A. in 1970 held formal hearings on eleven petitions filed by railroads seeking exemptions from the regulations requiring that trains be given initial terminal brake inspections and tests at corporate boundaries when a "run-through train" is received in interchange by one railroad from another. *fn3" Hearings were held in New Orleans, St. Louis and Washington, D.C. Participants in those hearings were the plaintiffs in this action, the Brotherhood of Locomotive Engineers, the petitioning railroads and representatives of the Federal Railroad Administration. An order was entered on June 10, 1970 by the Hearing Examiner which adopted a rule applicable to the petitioning railroads in the New Orleans proceedings. That order provided that the rule was an interim one pending further study and further proceedings. Thereafter all eleven petitions were consolidated for hearing and the St. Louis and Washington, D.C. hearings were held. On October 22, 1970, the Hearing Examiner filed his decision and order which superseded the June 10, 1970 order. The Federal Railroad Administration, acting on plaintiffs' petition for reconsideration, left unchanged the rule promulgated by the October 22, 1970 order but limited its application to the petitioning railroads.

 The October 22, 1970 rule requires that personnel, trained and qualified to inspect, test and repair cars, make the initial terminal and the intermediate (500 miles) tests and inspections of train brakes at points where adequate car repair facilities are available. If the point of actual interchange (corporate boundary) of a train from one railroad to another is different from that where the initial terminal test is made, the receiving railroad must make a test and inspection to determine that brake pipe leakage does not exceed 5 pounds per minute and that the brakes apply and release on the rear car from a 20 pound service brake pipe reduction. The initial terminal and intermediate (500 miles) tests must be certified on a form prescribed by F.R.A. The false execution of the certificate is made an offense under 18 U.S.C. 1001. The rule specifically provides that it does not relieve the delivering and receiving railroads in the interchange of a train from the provisions of the Safety Appliance Acts pertaining to the moving of defective equipment.

 The October 22, 1970 order provided that the rule promulgated remains subject to additional requirements as shown to be warranted in the interest of safety. The Hearing Examiner retained jurisdiction for a period of one year from November 30, 1970, the effective date of the order.

 Plaintiffs attack the October 22, 1970 rule as being in excess of the delegated power to the F.R.A. and in violation of the Power or Train Brakes Safety Appliance Act of 1958 (45 U.S.C. § 9). They argue that the promulgated rule not only did not make train operations safer but that it had for its purpose the promotion of efficient and economical railroad operation. In short, according to plaintiffs, what the F.R.A. has attempted here is to enact legislation, under the guise of its rule-making power, which would alter and subvert the Power Brake Act in disregard of Congressional limitation on the agency. According to the plaintiffs, this limitation is to be found in the proviso in the Act which authorizes changes in the brake testing and inspection regulation "solely for the purpose of achieving safety."

 During the course of the consolidated hearing, the Hearing Examiner heard testimony of a number of witnesses. From that testimony and the inspection reports which he considered, he found that the quality of the inspections and tests being given at the initial terminals was not up to the desired level on all trains. In some instances he found that the quality of the inspections and tests was good, while in other cases it was not. He heard testimony that "corn field" inspections, where qualified personnel and adequate car repair facilities were not available, did not benefit safety. While not uncontradicted, other testimony was to the effect that given a high quality brake testing and inspection at the initial terminal a train did not need a terminal type of inspection and testing at an interchange point. In that connection the Hearing Examiner pointed out that, under the 1958 rules, a train traveling on the line of one railroad, after having had the initial terminal inspection and testing, could travel a great distance with crew changes en route without further inspection and testing, while another train, having had the initial terminal inspection and testing, would need another inspection and testing at an interchange point even if the distance traveled from the initial terminal was but a few miles.

 Moreover, as the Hearing Examiner noted, railroad mergers in recent years have eliminated numerous corporate boundaries and, thus those interchange points where prior to such mergers train brake inspection and testing had been required.

 As a result of the rule-making proceedings, the Hearing Examiner concluded that train operation safety would be increased by a rule, together with its strict enforcement, that required high quality inspection and testing of brakes at initial terminals and at intermediate (500 miles) points by qualified personnel where adequate car repair facilities were available. Such were the terms of the October 22, 1970 rule, which also eliminated the requirement of the initial terminal type inspection and testing at interchange points.

 The fact that the proceedings were initiated by the railroads for economic reasons and that safety considerations were brought forward later does not undermine the bona fides or legal effect of the Hearing Examiner's findings. Nor do the incidental economic and competitive benefits accruing to the railroads through the promulgation of the 1970 rule furthering safety give cause for setting the rule aside as being in violation of the 1958 Act. When the legislation was under consideration in Congress the railroads expressed concern that the authority proposed to be conferred on the I.C.C. *fn4" would be used to adopt regulations limiting the length of trains and thus adversely affect the railroads in the economic sense. To make certain that there would be no such use of the legislation, the bill was amended to provide that the brake ...

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