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BNSF RAILWAY COMPANY v. FEDERAL RAILROAD ADMIN.

No. 22-60217.

62 F.4th 905 (2023)

BNSF RAILWAY COMPANY, Petitioner, v. FEDERAL RAILROAD ADMINISTRATION; Amit Bose, in his official capacity as Administrator, Federal Railroad Administration; United States Department of Transportation, Respondents.

United States Court of Appeals, Fifth Circuit.

FILED March 15, 2023.

Attorney(s) appearing for the Case

Thomas Henderson Dupree, Jr., Esq. , Deputy Assistant Attorney General, Jessica Wagner , Gibson, Dunn & Crutcher, L.L.P., Washington, DC, for Petitioner.

Cynthia Barmore , U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Allison Ishihara Fultz , U.S. Department of Transportation, Federal Railroad Administration, Washington, DC, for Respondents.

Richard Steven Edelman , Mooney Green Saindon Murphy & Welch, Washington, DC, for Intervenor.

Sean Michael Marotta , Arjun Garg , Kevin Michael Sheys , Nathaniel Avi Gideon Zelinsky , Hogan Lovells US, L.L.P., Washington, DC, for Amicus Curiae National Association of Manufacturers.

Justin M. Waggoner , Smyser Kaplan & Veselka, L.L.P., Houston, TX, for Amicus Curiae Association of American Railroads.

Before Jones, Smith, and Graves, Circuit Judges.

BNSF Railway Co. ("BNSF") petitions for review, contending that the refusal of the Federal Railroad Administration ("FRA") to grant a waiver of standard track-inspection regulations so that BNSF could test a new technology was arbitrary and capricious. Agreeing with BNSF, we grant review, vacate, and remand.

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