Before Buckley, Williams, and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitions for Review of an Order of the United States Department of Transportation
Opinion for the court filed by Circuit Judge Buckley.
In these consolidated cases, we are asked to consider two petitions for review of a final rule issued by the Federal Railroad Administration. The first was filed while a petition for reconsideration was still pending before the agency; the other was submitted several months after the statutory deadline for the filing of a petition challenging the rule. We dismiss both petitions as untimely.
On August 16, 1993, the Federal Railroad Administration ("FRA") issued a final rule "revising the exclusionary language [exempting train or yard crews from `blue signal' safety regulations] to allow augmentation of a crew with a `utility' employee, and creating alternate safety procedures to prevent injury to these employees." Protection of Utility Workers, 58 Fed. Reg. 43,287 (Aug. 16, 1993) ("Final Rule"). The FRA concluded that a utility employee, who is defined as a "railroad employee assigned to and functioning as a temporary member of a train or yard crew," 49 C.F.R. Section(s) 218.5 (1994), should be allowed to work under essentially the same conditions as other train or yard crew members. 58 Fed. Reg. at 43,288.
The Brotherhood of Railway Carmen ("BRC") petitioned for reconsideration of the Final Rule on September 3, 1993. The FRA's regulations provide that "[e]ach petition [for reconsideration] shall be decided not later than 4 months after its receipt by the Docket Clerk." 49 C.F.R. 211.31(a) (1994). Nevertheless, four months after the filing of the BRC's petition for reconsideration, the FRA had not rendered its decision. On March 7, 1994, the BRC filed the petition for review that is docketed as case number 94-1156. Three days later, the FRA denied its petition for reconsideration.
Subsequently, on March 1, 1995, the FRA published its "respon[ses] to the concerns raised in petitions to reconsider the final rule" and announced two amendments to the Rule, including one that would "permit single-person crews to work within the protections provided for train and yard crews." Response to Petitions to Reconsider, 60 Fed. Reg. 11,047 (Mar. 1, 1995) ("1995 Response"). The BRC thereupon filed the petition for review that is docketed as case number 95-1169. This petition sought to reopen the debate on the Final Rule by `request[ing] the Court to declare invalid those provisions of the [Final Rule] that exceed the Respondents' authority...." Pet. for Review, No. 95-1169 (Mar. 20, 1995).
On May 8, 1995, the FRA responded by filing a motion requesting that we consolidate No. 95-1169 with No. 94-1156 and dismiss the petition for lack of appellate jurisdiction. We grant the motion to consolidate and deny both petitions for review for the reasons set forth below.