[00:00:01] Speaker 00: Case number 16-1101, Flyers Rights Education Fund, Inc., doing business as Flyers Rights Org, doing business as Powell-Hudson Petitioner, versus Federal Aviation Administration at L. Mr. Sandler for the petitioner, Michonne for the respondent. [00:00:38] Speaker 03: Good morning. [00:00:41] Speaker 01: Good morning. [00:00:41] Speaker 01: I may appease the court. [00:00:43] Speaker 01: Joe Sandler for petitioner flyers rights. [00:00:47] Speaker 01: In this case, the Federal Aviation Administration declined to undertake a rulemaking to address what is a matter of common sense would appear to be a significant safety concern for airline passengers. [00:01:00] Speaker 01: And that is the effect of decreasing seat size and legroom on the ability to evacuate an aircraft safely in case of an emergency. [00:01:10] Speaker 01: We talk about legroom. [00:01:11] Speaker 01: The technical term that you see in the briefs and in the materials is pitch, which is [00:01:17] Speaker 01: refers to the distance between a point on a seat and the same point on the seat immediately in front of you. [00:01:25] Speaker 01: We recognize that agencies have wide discretion to decide. [00:01:28] Speaker 04: Can you ask a technical question about that? [00:01:32] Speaker 04: I would have thought the most relevant information would be the distance between the front of one seat and the back of the other, not the front of one seat and the front of the next seat. [00:01:41] Speaker 04: Is there some other measurement that gets that exact space between the front of your seat and the back of the seat in front of you? [00:01:49] Speaker 04: That seems to be different from pitch. [00:01:50] Speaker 04: Is there some name for that? [00:01:52] Speaker 04: I don't know. [00:01:53] Speaker 01: Isn't that the relevant space? [00:01:57] Speaker 01: That's the common measurement is that distance. [00:02:01] Speaker 01: And we recognize that agencies have wide discretion to decide whether to institute rulemaking proceedings, and that it is a matter within the agency's expertise. [00:02:11] Speaker 01: But this Court still requires that an agency adequately explain the facts it relied on in declining to issue a new rule, [00:02:19] Speaker 01: and that the facts have some basis in the record so that this court can determine whether there is a reason basis for the agency's decision. [00:02:27] Speaker 01: And in this case, the FAA has not adequately explained why it isn't planning to take any action to address the potential safety risk, because the facts it's supposedly relying on are not part of the record in this proceeding. [00:02:41] Speaker 01: And so there's no way in which not. [00:02:43] Speaker 05: Just to push you a little bit on this, Mr. Sandler, [00:02:46] Speaker 05: Assume that the agency had not adverted to these studies. [00:02:54] Speaker 05: And I think you might concede this in your brief. [00:02:57] Speaker 05: You think they could have just said, given all the priorities that we have, this is not high on our list. [00:03:04] Speaker 05: And they get into difficulty because they make a factual assertion that then they don't have any evidence to support. [00:03:11] Speaker 01: Is that right? [00:03:12] Speaker 01: In part, Your Honor, in fact, if they had just relied on priorities, they would still need to give some factual reason as to why those priorities involve more critical matters of safety than this one. [00:03:27] Speaker 05: They would say, well, we don't have reason to believe from [00:03:31] Speaker 05: reports from passengers, from reports from airlines, from anything you've submitted that, you know, other than sort of the logic about deepening thrombosis and stiffness, we don't have any just anecdotal reason yet to think this is a deep problem and we have a lot of other things on our plate. [00:03:50] Speaker 05: That seems like that would be something that we would not have any basis to [00:03:57] Speaker 01: Well, if they refer to studies and information, they have studies and information that they have. [00:04:02] Speaker 05: That I understand to be your position. [00:04:03] Speaker 05: It's because they refer to studies and information that said, we've covered that, we've looked at it, we don't see the risk. [00:04:09] Speaker 05: That's the number of your case, right? [00:04:12] Speaker 01: It is the nub of our case, but have they just said, well, we've never even thought of it. [00:04:16] Speaker 01: We just sort of made an a priori determination, which in effect they did, that even though it was a matter of common sense, people struggled to get out of the aisle to catch the next flight or to meet the people greeting them, the a priori determined that there's no way that can be a factor. [00:04:32] Speaker 05: Although agencies a priori, I think we can presumptively say they're getting information or not. [00:04:41] Speaker 05: And the very fact that whatever information just in the course of business they may or may not be getting is putting issues on the radar screen and other issues not. [00:04:51] Speaker 05: So we can assume that if they really were a serious problem, they would have reason to know about it. [00:05:00] Speaker 01: well we don't think you can assume that because if there were to the extent that they have said well we've evacuated aircraft with the uh... [00:05:08] Speaker 01: 28 inches. [00:05:11] Speaker 01: The aircraft demonstrations, first of all, in many cases, they don't even require physical demonstration. [00:05:17] Speaker 01: It's computer simulation. [00:05:19] Speaker 01: But they can't point to either a physical demonstration or a computer simulation where this factor has been taken into account. [00:05:28] Speaker 01: They say it has, but it's secret evidence. [00:05:30] Speaker 01: They can't show us the study. [00:05:33] Speaker 01: And in that regard, it really doesn't make sense why [00:05:38] Speaker 01: that information would be proprietary, why it would reveal proprietary design criteria of aircraft and the like, but even so, it's common as this court is so well aware for an agency in that situation to adapt information as they do routinely in response to Freedom of Information Act requests and in rulemaking proceedings. [00:05:59] Speaker 04: Can I clarify the context of your position? [00:06:01] Speaker 04: Is it just that they need [00:06:03] Speaker 04: to test because seat pitches have gotten smaller, or that they need to test in a way that reflects both that seat pitches have gotten smaller and passengers have gotten bigger? [00:06:14] Speaker 01: Exactly. [00:06:15] Speaker 01: It's both, Your Honor. [00:06:17] Speaker 01: In fact, there was a fundamental change in the circumstances under which they through the [00:06:21] Speaker 01: in the past have declined to regulate seat size and legroom, and that is exactly what Your Honor said. [00:06:30] Speaker 05: Seat size is- Mr. Chairman, you say a fundamental change, and I know that's one of the triggering circumstances for explanation, but there wasn't a regulation on this before, was there? [00:06:42] Speaker 05: That's right. [00:06:42] Speaker 05: So I guess the question is, if there's no baseline from which a change is being made, how can you say there was a fundamental change? [00:06:47] Speaker 01: Fundamental change in the factual predicate for any sort of, again, a priori assumption that this doesn't make a difference. [00:06:55] Speaker 01: When you have seat sizes shrunk to this level and legroom shrunk to this level, and no limit, there is no limit on the extent to which the airlines can keep shrinking seat size. [00:07:08] Speaker 05: But isn't it a fundamental change? [00:07:09] Speaker 05: It's just it hasn't, I mean, I think your objection is this should now be on their agenda, and it's not. [00:07:15] Speaker 05: I mean, if airlines use latex paint for years and years, but there's no regulation on it, and then they start using oil-based paint, and somebody notices this is a problem, and says, you should regulate now. [00:07:30] Speaker 05: That's not a fundamental change in the sense, I think, that our cases refer to it, because it's not a change from a prior regulatory position. [00:07:37] Speaker 05: Or is it? [00:07:37] Speaker 05: Are you telling me that it is? [00:07:39] Speaker 01: Well, it's not a fundamental change if the factor we're talking about doesn't have any logical connection to the issue that they were trying to address. [00:07:47] Speaker 05: I guess my wasn't very illustrative hypo, because I was assuming that there was some change in terms of aerodynamics or something. [00:07:55] Speaker 05: If something starts to be noticed as a potential problem, [00:08:00] Speaker 05: for reasons of factual change in the world, but there's no prior regulation, then the decision, how could the next decision of the agency be a fundamental change? [00:08:17] Speaker 05: from a prior state of affairs that didn't include a regulation? [00:08:21] Speaker 01: That's true. [00:08:21] Speaker 01: I think it's a question of this is an agency that has a statutory mandate to regulate safety. [00:08:28] Speaker 01: This is a change in circumstance that raises as a matter of everyone's experience and common sense. [00:08:34] Speaker 01: We would seem to be a safety concern. [00:08:36] Speaker 01: And the agency is saying, well, we actually have looked at this, but we can't tell you what we found. [00:08:43] Speaker 04: Well, I bet you there was no regulation saying Samsung Galaxy phones are forbidden from airplanes until, in the real world, we learned that they were exploding. [00:08:52] Speaker 04: And if the airlines at that point hadn't said, wow, that's a change in the factual world in which we're operating that's quite relevant to safety, [00:09:01] Speaker 04: I guess someone could have petitioned and said, can you please ban these things from the airplane, too? [00:09:05] Speaker 01: Exactly. [00:09:06] Speaker 01: I mean, had that happened, then the FAA declined to act and said, you know, we're not going to ban these Samsung 7 phones, you know, because we have other priorities. [00:09:17] Speaker 01: I think the court would be entitled to see a record that said, well, what more critical safety aspects are there than this, you know, than exploding planes? [00:09:25] Speaker 01: And again, it's the absence of any reason basis in this record. [00:09:30] Speaker 01: That's the concern here. [00:09:32] Speaker 04: Have you submitted a FOIA request for these tests and why isn't that your proper remedy? [00:09:39] Speaker 01: It is definitely a potential remedy. [00:09:44] Speaker 01: It would be an alternative remedy, completely agreed. [00:09:47] Speaker 01: We think that [00:09:49] Speaker 01: though that the agency had an independent obligation in this case, when it writes a letter saying, you know, we have studies that show this, we have information that shows that you can evacuate safely even at these extremely reduced seat sizes and leg room, that they have an obligation to provide the information as part of the records of the court. [00:10:10] Speaker 04: That's a process argument. [00:10:12] Speaker 04: It's a process argument. [00:10:13] Speaker 04: You're entitled to make it. [00:10:14] Speaker 04: But your aim here, at least as the brief portrays it, is really to increase airplane safety. [00:10:21] Speaker 04: So I guess I would have thought you'd be going on all fronts. [00:10:24] Speaker 04: I'm just curious as to why. [00:10:25] Speaker 04: You don't have to answer, but I'm just curious. [00:10:27] Speaker 04: I'm just curious to me that no FOIA request has been submitted for these. [00:10:32] Speaker 01: Right. [00:10:32] Speaker 01: I mean, I think that's a very fair question, partly a matter of the organization's own [00:10:37] Speaker 01: priorities to try to get a more toward – at least put a freeze in place on the airline's ability to continue to reduce the seat size of that limit until the agency can take a determined and reasoned look at it. [00:10:50] Speaker 05: I wonder if you would address the standing of your client to sue. [00:10:57] Speaker 01: Yes, we believe there are two clients here. [00:11:00] Speaker 01: There is Flyers Rent Education Fund, which represents airline passengers that have expressed to the organization and in comments in this actual proceeding their concern about passenger [00:11:14] Speaker 01: safety. [00:11:15] Speaker 01: There was a large madness that he couldn't assume the crash position, couldn't follow the flight attendant's instructions because the seat size didn't allow it. [00:11:24] Speaker 01: We think that Flyer's rights, in terms of those passenger concerns, has representational standing. [00:11:29] Speaker 01: And then the president of Flyer's rights, Mr. Paul Hudson, who is one of the petitioners, is a frequent flyer, not a mere detached observer, but a frequent flyer in his own right who has significant [00:11:43] Speaker 01: concerns and fears about this, and there's some expertise in it as well. [00:11:47] Speaker 05: Concerns and fears I don't think are clearly enough. [00:11:53] Speaker 05: So you'd have some more concrete injury, no? [00:11:59] Speaker 01: Well, I think when passengers observe and know, and in the case of Mr. Hudson, because of his personal involvement, he sits on one of the advisory committees of the FAA, [00:12:11] Speaker 01: concerned that they see this dramatic shrinkage in seat size and legroom and struggling to get out of the aisles, it's a reasonable concern to determine, well, has the FAA required the airlines to take this into account in all these detailed criteria and procedures in the evacuation organizations? [00:12:34] Speaker 05: I think Food and Water Watch, other cases of our court have said, [00:12:37] Speaker 05: You know, just because you're taking kind of prophylactic action because of your concerns, reasonable or not, that is not alone the kind of harm that would support your standing. [00:12:49] Speaker 05: Now, I know that your individual client has said, I've been on flights. [00:12:55] Speaker 05: I've been uncomfortable. [00:12:57] Speaker 01: Well, more than uncomfortable. [00:12:59] Speaker 01: Concerned about safety. [00:13:02] Speaker 05: The reasonable anxiety or concern [00:13:05] Speaker 05: just bear with me and assume that that isn't enough, and we'll obviously have to make a legal determination on that, but assume that writ concern, however reasonable concern, risk, isn't enough, whether it's under clapper, whether it's under water watch, but that there has to be something more concrete [00:13:27] Speaker 05: He's a frequent traveler. [00:13:30] Speaker 05: He said I'm stiff, I'm uncomfortable. [00:13:34] Speaker 05: But he hasn't said I'm stiff and uncomfortable more so now that the seats are smaller. [00:13:39] Speaker 05: Maybe I'm stiff and uncomfortable in the same size seats because I'm getting older. [00:13:42] Speaker 05: So I'm just trying to sort of home in on what the harm is that you're alleging. [00:13:49] Speaker 01: Well, we think he's saying that he is more, not just uncomfortable, but made more unsafe because of the dramatic decrease in seat size and legroom, and that it should not be necessary, as the Court said in other cases, for there to be an actual crash, an emergency where this has to be tested in order to raise the issue of whether the FAA [00:14:12] Speaker 01: should address it, as the Court said in the Safe Extensions case, a person disclosing a substantial interest in the order issued by the FAA may apply for review of the order. [00:14:23] Speaker 01: So that's – we think there is both association and individual standing here now. [00:14:31] Speaker 03: Thank you. [00:14:32] Speaker 03: Could I just ask you, do we have an affidavit from the man who's [00:14:38] Speaker 03: Do we have an affidavit from the man who's overweight and had trouble getting out of his seat? [00:14:45] Speaker 01: Not an affidavit. [00:14:46] Speaker 01: There are included in the record the comments of a number of air passengers who participated in the docket and the request for the rulemaking. [00:14:56] Speaker 01: But it's not. [00:14:57] Speaker 01: Those are comments not sworn testimony. [00:14:59] Speaker 03: Not sworn testimony. [00:15:01] Speaker 03: But you know the name of this man. [00:15:03] Speaker 01: Yes. [00:15:04] Speaker 01: These are comments on the record. [00:15:06] Speaker 03: All right, and he is a member of the organization. [00:15:08] Speaker 01: I don't know if he's a member of the organization. [00:15:11] Speaker 01: They responded to announcements of the petition being filed and so forth to participate, but I don't know if he has taken any other action. [00:15:20] Speaker 03: What I'm getting at is this court has, in the past, held that where the court is having a concern about our jurisdiction, [00:15:31] Speaker 03: And the issue goes to standing. [00:15:33] Speaker 03: We have permitted supplemental affidavits to be filed. [00:15:38] Speaker 03: And that's really my question. [00:15:41] Speaker 03: If we were to pursue this, would your organization be in a position to file that type of affidavit to show more than simply what I'll call emotional concern? [00:15:53] Speaker 01: Yes, absolutely. [00:15:55] Speaker 01: We don't really get affidavits from these commenters and others to that effect, Your Honor. [00:15:58] Speaker 03: Thank you. [00:15:59] Speaker 01: Thank you. [00:16:09] Speaker 02: Good morning. [00:16:10] Speaker 02: Excuse me, let me try that again. [00:16:12] Speaker 02: Good morning. [00:16:12] Speaker 02: May it please the court? [00:16:13] Speaker 02: Karen Schoen on behalf of the government. [00:16:15] Speaker 02: Whether to initiate a rulemaking is a decision committed largely to the agency's discretion. [00:16:20] Speaker 02: Here the FAA, which is charged with ensuring aviation safety, reasonably declines to engage in a rulemaking here. [00:16:27] Speaker 02: As this Court has made clear, the scope of review is very narrow. [00:16:32] Speaker 02: And the Court has also said that it's only in the rarest and most compelling of circumstances that this Court has overturned an agency's judgment not to initiate a rulemaking. [00:16:40] Speaker 02: And there are no such compelling circumstances here. [00:16:43] Speaker 02: The agency reasonably determined that there was no immediate safety risk here and made a reasonable decision not to initiate a rulemaking. [00:16:54] Speaker 03: Because they had these studies? [00:16:56] Speaker 02: Well, one of the reasons they pointed to in their letter, Your Honor, is that evacuation demonstrations have been successfully conducted by manufacturers in the process of certifying aircraft. [00:17:08] Speaker 02: Those evacuation demonstrations have been successfully conducted down to 28-inch pitch, which is the lowest pitch cited by petitioners. [00:17:15] Speaker 03: And let me just... And we know that because the agency has told us. [00:17:19] Speaker 02: Yes. [00:17:20] Speaker 03: But we don't know that, in fact, this has occurred. [00:17:27] Speaker 03: because the information is proprietary? [00:17:30] Speaker 02: Some of the specific results and details of the demonstrations are proprietary to the manufacturers, but let me just be clear about what these are, because these are evacuation demonstrations that are done as part of the certification of a model aircraft. [00:17:45] Speaker 02: They are required to be done [00:17:46] Speaker 02: And it is an evacuation of the maximum number of passengers to be certified for that model aircraft. [00:17:53] Speaker 02: They must, along with the required number of crew members, they must evacuate from the plane to the ground under simulated emergency conditions within 90 seconds. [00:18:02] Speaker 02: And the FAA prescribes a number of requirements and conditions under which these demonstrations must be conducted. [00:18:09] Speaker 02: I understood that argument. [00:18:10] Speaker 03: So your regulations go to the number of passengers and the width of the aisle. [00:18:16] Speaker 03: the width of the aisle, the number and type of exits, the size of exits, the placement of exits, emergency lighting, and these are... If I am a large, large person sitting in a middle seat that is 28 inches wide and I can't get out, have the simulations addressed that? [00:18:41] Speaker 02: Well, the demonstrations have been run down to 28 inch pitch. [00:18:46] Speaker 02: With large, heavy weight people? [00:18:49] Speaker 02: These are with real world people. [00:18:51] Speaker 02: These are volunteers. [00:18:53] Speaker 02: Often they are employees of a manufacturer who are naive, which means they've never done this before. [00:18:59] Speaker 03: So could I just ask you, following up on Judge Pillard's question, if the agency had simply answered in the way her question suggested, [00:19:10] Speaker 03: without any reference to these studies. [00:19:14] Speaker 03: Is it the agency's position there would be no basis for any action by this court other than to deny the petition? [00:19:22] Speaker 02: Yes, Your Honor, I think that would have been sufficient. [00:19:25] Speaker 02: You know, the agency has discretion to set its priorities. [00:19:28] Speaker 02: You know, it has a lot of expertise in this area. [00:19:30] Speaker 02: This is something that the FAA takes very seriously. [00:19:33] Speaker 02: You know, evacuation is an important concern. [00:19:35] Speaker 02: They've issued a number of regulations meant to ensure that people can evacuate. [00:19:39] Speaker 02: They monitor real-world incidents when there are accidents or other emergency situations when people have to, in the real world, evacuate. [00:19:46] Speaker 02: the aircraft, there have been other studies, and there are these evacuation demonstrations. [00:19:51] Speaker 02: And the agency just has a lot of institutional knowledge on this, and they have to take that into account and then, you know, prioritize other, there are a lot of other safety issues, like the phones catching on fire and other things that they need to think about and be addressing. [00:20:05] Speaker 02: Do you have to change circumstance? [00:20:07] Speaker 02: I don't think there are. [00:20:09] Speaker 04: Would that be a changed circumstance under our law, even if there hadn't been a prior regulation, but suddenly in the real world, something becomes a known risk that wasn't a risk before, if the airlines hadn't banned? [00:20:23] Speaker 02: Yeah, I mean, I don't know if that would technically be a changed circumstance or not, but I think certainly the FAA would need to consider that if there were evidence. [00:20:31] Speaker 02: But I also want to point out, petitioners. [00:20:33] Speaker 04: Wait, so the FAA, if the petition here involved [00:20:36] Speaker 04: Samsung phones exploding, because the FAA, for whatever reason, just wasn't dealing with it. [00:20:43] Speaker 04: Your position is that they said, hey, it's all over the news. [00:20:46] Speaker 04: They're exploding all over the place. [00:20:48] Speaker 04: I see people using them on airplanes. [00:20:51] Speaker 04: Please, you should ban them as a safety risk. [00:20:53] Speaker 04: That would be a petition you would have to respond to. [00:20:56] Speaker 02: I think the FAA would need to give some reasons for why it was denying. [00:21:00] Speaker 04: I mean, and we would have to consider... Could you say what Judge Pilley said? [00:21:04] Speaker 04: We don't think in our judgment that it's a problem. [00:21:07] Speaker 04: We have a lot of other things on our plate. [00:21:09] Speaker 04: Would that have been sufficient? [00:21:11] Speaker 02: I guess it would depend on what the evidence was. [00:21:14] Speaker 04: I mean, here... The evidence is all the newspaper articles and news stories about exploding Samsungs, and maybe even the Samsung recall. [00:21:21] Speaker 02: I think probably there would be a little bit more of an explanation required, but I think that's a very different situation than we have here because petitioners speculate that it could hinder passengers' ability to evacuate the plane, but they offer no evidence of that, no reason to believe that. [00:21:38] Speaker 04: The studies that you put into the record said, J8 to 9, that recommendations in the past have included things like seating density. [00:21:50] Speaker 04: And another study on JA-13 talked about some folks who couldn't move from their seats being relevant. [00:22:00] Speaker 04: So don't your own studies recognize that this ability to extricate yourself from the seat and the row have got to be relevant to egress safety? [00:22:12] Speaker 02: Seating density refers to the number of seats per exit. [00:22:16] Speaker 02: It's not necessarily how close the rows are together, so that's just a term that's referring to something different. [00:22:24] Speaker 02: But, you know, what the agency has found is there have been these... What about they couldn't move from their seats? [00:22:28] Speaker 02: I'm sorry? [00:22:28] Speaker 04: What about finding it relevant when people couldn't move from their seats for whatever reason? [00:22:33] Speaker 02: And where is that, Your Honor? [00:22:34] Speaker 04: It was JA 13. [00:22:39] Speaker 04: I'm sorry, but the ability to people move from their seats, I don't know there if it might have been people density or something. [00:22:47] Speaker 02: I'm not sure what that was referring to. [00:22:49] Speaker 02: I think that was a different issue. [00:22:52] Speaker 02: But I think what they have found through these studies is that [00:22:55] Speaker 02: actually the sort of the bottleneck and the difficulty is once you're out of your seat in the aisle there's a queue that forms in the aisle and so the slowness and what sort of becomes a bottleneck and makes the evacuate what is the evacuation speed is chiefly dependent on is the ability to move through the aisle and then actually exit out of the exit door or that may be chiefly that might be chiefly the problem but doesn't again doesn't it make [00:23:19] Speaker 04: just common sense that your ability to get out of your own seat, to move from your seat, if we care about how much space there is for the exit rows, for obvious reasons, you need even more space there. [00:23:33] Speaker 04: But isn't it logical that space and the ability to move are [00:23:40] Speaker 04: what it's all about for egress. [00:23:42] Speaker 02: It certainly could be relevant and we're not going to suggest that this could never ever have an impact and there might be a time when the agency decides this is something they need to regulate. [00:23:51] Speaker 05: But at this point I'm a little bit confused by your position because I take it that you asserted that of course there were studies in fact that airlines can't fly unless they've succeeded [00:24:04] Speaker 05: in each model and doing the evacuation within 90 seconds, right? [00:24:08] Speaker 05: And so there is, in fact, factual predicates supporting the assertion that was made on the record in this case. [00:24:17] Speaker 05: But those studies have not been submitted. [00:24:20] Speaker 02: That's correct. [00:24:22] Speaker 02: And I think there's no need to, frankly. [00:24:24] Speaker 02: I mean, what this court has explained in, well, first of all, let me just distinguish. [00:24:28] Speaker 02: This is a decision not to engage in rulemaking, which this court has very clearly distinguished from rulemaking. [00:24:33] Speaker 02: And there's not the same obligation to build a record that there is had the agency engaged in rulemaking. [00:24:38] Speaker 03: But we have to be able to determine [00:24:41] Speaker 03: but the facts on which the agency relied have some basis in the record. [00:24:45] Speaker 03: So hypothetically, just following through, take the cigarette case. [00:24:49] Speaker 03: The question was, is smoking dangerous? [00:24:53] Speaker 03: And the cigarette companies keep telling the FDA, there's no problem here. [00:24:58] Speaker 03: What I'm getting at is the question, I'm a manufacturer of airplanes for an owner, and obviously I want to get as many people in these seats as possible. [00:25:10] Speaker 03: in terms of the bottom line. [00:25:13] Speaker 03: So when the agency makes this representation to the court about what the studies show, we're not sure what the studies show. [00:25:22] Speaker 03: So you say there's proprietary information. [00:25:24] Speaker 03: So my question is, the agency hasn't said you could not ask the manufacturers to submit the material in a form that could be shared or [00:25:40] Speaker 03: submit it to the court under seal. [00:25:44] Speaker 03: But if you're positioned that even though you relied on this information in deciding not to pursue a rulemaking, there is no obligation to provide a record for the court. [00:26:00] Speaker 02: Well, yes. [00:26:02] Speaker 02: I think our initial point is that there is no obligation here. [00:26:05] Speaker 02: One of the things this court explained in WWHT, for example, is that where the agency decides not to proceed with rulemaking, the record for purposes of review need only include the petition for rulemaking, comments pro and con were deemed appropriate, and the agency's... And look at page 817. [00:26:22] Speaker 03: I'm sorry? [00:26:22] Speaker 03: Look at page 817. [00:26:24] Speaker 03: That's where it says the court has to be able to. [00:26:29] Speaker 03: determined that there was some basis in the record. [00:26:31] Speaker 02: Right, but then it also said that the record may only be the agency's explanation of its decision to reject the petition. [00:26:37] Speaker 03: So the agency said you relied on studies, and that's all you have to say? [00:26:42] Speaker 02: That can be. [00:26:43] Speaker 02: Let me be clear, too. [00:26:45] Speaker 02: These are not just some studies that someone else has conducted. [00:26:49] Speaker 02: These evacuation demonstrations are conducted by the manufacturer, but the manufacturer has to submit a plan, a certification plan, plans about the demonstration to the FAA, which the FAA reviews and approves. [00:27:01] Speaker 02: The FAA observers actually witness the evacuation demonstration. [00:27:05] Speaker 02: So the FAA has first-hand knowledge about these. [00:27:08] Speaker 03: I mean, it'd be interesting if the court were told all this. [00:27:13] Speaker 02: I'm sorry. [00:27:14] Speaker 05: Well, we were not told all of that. [00:27:15] Speaker 02: But we'll explain in our brief how the demonstrations were. [00:27:22] Speaker 03: But not in denying the petition, but in rulemaking. [00:27:27] Speaker 03: Oh, that's why we were in. [00:27:28] Speaker 03: In other words, your brief says, don't worry. [00:27:31] Speaker 03: We've got this under control. [00:27:34] Speaker 03: But in responding to the petition for rulemaking, you said we have these studies. [00:27:38] Speaker 03: And here are three of them. [00:27:40] Speaker 02: Well, the petition for rulemaking also referred to the evacuation demonstrations and explained that in both the initial letter and the follow-up letter, explained that these evacuation demonstrations have been successfully conducted, explained sort of what these demonstrations are, and that multiple menu... 28-inch seats with overweight people. [00:27:59] Speaker 02: it did not refer specifically to overweight people. [00:28:01] Speaker 02: But the way these evacuation demonstrations are done are prescribed in great detail in the regulations. [00:28:10] Speaker 02: So Appendix J to Part 25 of the regulations prescribe in very great detail how these evacuation demonstrations are supposed to be conducted. [00:28:19] Speaker 03: I understand, but there is this concern about people having large portions. [00:28:24] Speaker 03: This is something sort of new. [00:28:26] Speaker 03: And they used to have seats that were bigger, or they'd be in the first row. [00:28:33] Speaker 03: And now it's more of a problem. [00:28:35] Speaker 03: And my question is, are these evacuation studies up to date? [00:28:41] Speaker 02: The demonstrations require that they be conducted with a representative passenger load. [00:28:48] Speaker 02: There's a breakdown. [00:28:50] Speaker 02: They specify a minimum percentage of women, of men, of people over 50. [00:28:54] Speaker 02: So it's meant to be a representative cross section. [00:28:57] Speaker 02: Over 250 pounds? [00:28:58] Speaker 02: That I can't speak to, Your Honor. [00:29:01] Speaker 03: No, that's my point. [00:29:01] Speaker 03: You can't speak to it. [00:29:03] Speaker 03: Can you? [00:29:03] Speaker 03: The petitioners. [00:29:04] Speaker 03: At least they're claiming that this is a problem and council represented that they could get an affidavit for us saying an overweight man couldn't get out of his seat basically. [00:29:15] Speaker 03: And so that's my question in terms of [00:29:19] Speaker 03: Your position is, as I understand it, that where it's a denial of a rulemaking, basically the court needs to take the agency representations on their face. [00:29:34] Speaker 03: And that is the end of the court's inquiry. [00:29:36] Speaker 02: Well, I think especially with something like this, Your Honor. [00:29:39] Speaker 02: I mean, what's relevant here is the fact that they have been committed, excuse me, conducted. [00:29:45] Speaker 02: You know, had they been in the record, I don't think it would really alter the court's analysis. [00:29:49] Speaker 03: But you've already admitted that you don't know whether these evacuation studies have included a 250-pound person with 28-inch seats. [00:30:03] Speaker 03: And that's all I'm trying to understand. [00:30:05] Speaker 03: That's their complaint. [00:30:07] Speaker 03: And maybe the agency decides it just doesn't want to deal with it. [00:30:10] Speaker 03: But the agency took the position that we have studies that show that this is not a problem. [00:30:17] Speaker 02: Well, I think if the challenge is to the way these demonstrations are conducted, then that's a very different question, right? [00:30:23] Speaker 02: Because then what they're really challenging is the FAA's regulations regarding these [00:30:28] Speaker 02: these evacuation demonstrations. [00:30:29] Speaker 04: Do you want us to rely on these evacuation studies or not in ruling on this case? [00:30:34] Speaker 02: Well, I think you can rely on the statement in the agency's letter explaining that one of the reasons it doesn't see an immediate concern is that these evacuation demonstrations have been conducted down to 2018. [00:30:46] Speaker 04: So you want us to consider the FAA's representation that [00:30:53] Speaker 04: studies that were not showing you have been done that address exactly the concerns that are raised by the rulemaking petition. [00:31:00] Speaker 04: That's your position. [00:31:00] Speaker 04: You want us to consider them without putting them in the record? [00:31:03] Speaker 02: I mean, I'd like you to consider everything that the agency said in its letter denying the bullet. [00:31:07] Speaker 04: Do we need to consider the evacuation studies, or do you think it would be sufficient without? [00:31:10] Speaker 04: The FAA's response would have been sufficient without that. [00:31:14] Speaker 02: I think the FAA's response would have been sufficient. [00:31:16] Speaker 04: I mean, what they said was... It would have been sufficient without referencing those studies, under your view. [00:31:25] Speaker 02: I think the agency did explain. [00:31:26] Speaker 02: They explained that they didn't see an immediate safety concern. [00:31:29] Speaker 02: You know, the petition was very specific. [00:31:30] Speaker 02: The petition offered no reason to think there is a safety concern. [00:31:34] Speaker 03: I understand your point about... Your position in your brief was, look, we have all this guidance. [00:31:40] Speaker 03: We have these regulations. [00:31:41] Speaker 03: We covered everything. [00:31:44] Speaker 03: And the petitioners basically say, but have you covered this concern of ours? [00:31:50] Speaker 03: And the agency's response was, yes. [00:31:53] Speaker 03: because the manufacturer has done these evacuation studies, which FAA has approved. [00:32:01] Speaker 03: Here are three studies. [00:32:04] Speaker 03: And then you say, well, there's other information, but it's proprietary. [00:32:12] Speaker 03: So where are we? [00:32:13] Speaker 03: That's a concern. [00:32:15] Speaker 03: And I know you don't want to answer these questions. [00:32:17] Speaker 03: And I appreciate you don't want us to write an opinion that says agency conceded. [00:32:22] Speaker 03: But I mean, Judge Millett's question, it seems to me you have to answer that. [00:32:27] Speaker 03: Do you want to rely on those studies or not? [00:32:30] Speaker 02: I mean, we'd like you to rely on what the agency said in its denial letter. [00:32:34] Speaker 02: I think if you really... So that answer is yes. [00:32:37] Speaker 02: Yes, and I mean, if you... I mean, seriously, counsel. [00:32:40] Speaker 02: Yes, I'm sorry, I'm not trying to be evasive. [00:32:42] Speaker 02: Maybe I'm just misunderstanding the question. [00:32:44] Speaker 02: I apologize, Your Honor. [00:32:45] Speaker 03: No, my question was very clear. [00:32:47] Speaker 03: Do you want us to rely [00:32:50] Speaker 03: in resolving this petition on the studies that the agency identified in its second letter in response to the petition. [00:33:03] Speaker 05: Or even on the conclusion that you drew. [00:33:05] Speaker 05: I think what you're saying is you're an expert agency, you did what you typically do, you drew a conclusion, and absent a reason to think that you were somehow [00:33:17] Speaker 05: Ignoring your duty, we should rely on that. [00:33:20] Speaker 05: Is that your position? [00:33:20] Speaker 02: I think that's exactly right. [00:33:23] Speaker 03: Excuse me. [00:33:24] Speaker 03: Would you answer my question? [00:33:27] Speaker 02: Would you mind repeating it? [00:33:28] Speaker 02: I'm sorry, now I'm a little confused. [00:33:30] Speaker 03: Judge, in denying this petition, is the agency relying on the studies that it identified in its second response [00:33:43] Speaker 03: to the petitioners. [00:33:45] Speaker 02: When you say studies, it's the other studies, the other FAA studies that we included in the appendix, not the evacuation demonstrations. [00:33:51] Speaker 02: I think that's where I'm getting a little confused. [00:33:53] Speaker 02: The proprietary ones. [00:33:54] Speaker 02: The evacuation demonstrations. [00:33:56] Speaker 02: Do you want us to rely on that? [00:33:57] Speaker 02: I would like you to rely on the fact that they have been successfully conducted. [00:34:01] Speaker 03: Even though you don't know, in representing the agency, precisely what the benchmarks were. [00:34:12] Speaker 02: When you say benchmarks, I can tell you that they were a representative cross-section of people. [00:34:19] Speaker 02: The regulations require that they be a representative passenger load of people in normal health. [00:34:25] Speaker 03: Presumably, if it's taking a pool of people, there will be some... So if I'm the manufacturer, I've got men, I've got women, I've got old, I've got young, and I've got everybody who's under 140 pounds. [00:34:36] Speaker 03: No, I mean, seriously. [00:34:37] Speaker 02: Would that satisfy the regulations? [00:34:40] Speaker 02: Do they require height? [00:34:41] Speaker 02: I confess, Your Honor, I don't know if that would be considered representative or not. [00:34:45] Speaker 02: I honestly don't know the answer. [00:34:47] Speaker 04: You don't know if they require height and weight because there is also a submission of concerns that really tall people can't even assume the crash position anymore. [00:34:55] Speaker 02: Well, with respect to that, Your Honor, that's actually not true. [00:34:57] Speaker 02: There are different crash positions meant to reflect the fact that people are different size and build. [00:35:02] Speaker 02: Are all those crash positions [00:35:06] Speaker 04: equally good or did we come up with a plan B for the people who can't do what everyone's been doing all along for a crash position? [00:35:15] Speaker 02: I don't know. [00:35:15] Speaker 02: There is an advisory circular that addresses that. [00:35:18] Speaker 02: It's 121-24C and the FAA has [00:35:22] Speaker 02: several different crash positions for people, I think they discuss women who may have an infant, tall people, smaller people, and so taller people are supposed to rest their head on the seat in front of them. [00:35:34] Speaker 02: So here's our difficulty, Ms. [00:35:36] Speaker 02: Shown. [00:35:38] Speaker 05: You rightly point out that the FAA is an expert agency, and we consistently, and I think rightly, and are required by law to defer to that expertise. [00:35:49] Speaker 05: We also, though, as an institution, have a responsibility, which is simply to make sure that there is a reasoned explanation in the record. [00:35:59] Speaker 05: If you look at our case, the American Horse Protection Association versus Ling, which is also a decision not to initiate rulemaking, there [00:36:08] Speaker 05: the industry says a reviewed studies, or no actually this is the agency says, a reviewed studies, the Deputy Administrator, and other materials relating to these [00:36:21] Speaker 05: soaring devices that are used on the horses. [00:36:24] Speaker 05: And on the basis of this information, I believe the most effective method of enforcing the Act is to continue the current regulations. [00:36:32] Speaker 05: Very parallel to the situation you're in now. [00:36:35] Speaker 05: We don't want to do the regulation that the petitioner is asking. [00:36:38] Speaker 05: We've looked at the studies. [00:36:40] Speaker 05: We're an expert agency. [00:36:42] Speaker 05: Our court said, no, you can't just give us the conclusion. [00:36:47] Speaker 05: We know you're expert, and it's minimal. [00:36:52] Speaker 05: We're not going to get in there and rethink everything, because we're not the experts. [00:36:57] Speaker 05: But we do have an obligation to look at it and see, does it follow? [00:37:02] Speaker 05: And you're not giving us anything on which we can do that. [00:37:06] Speaker 02: I'd like to make two points, Your Honor. [00:37:07] Speaker 02: First, I would like to distinguish that case, because there, if I recall correctly, the agency had offered up some inconsistent positions. [00:37:15] Speaker 02: I think they may have said some things that were a little different after the fact of post-hoc rationalization versus the explanation they had originally given in denying the petition. [00:37:25] Speaker 02: And I think, if I recall correctly, there was also a new study that maybe cast some doubt or maybe may have [00:37:31] Speaker 02: at least given reason to question some of the factual predicates of the reason that the agency was given. [00:37:37] Speaker 02: And we don't have any of those circumstances here. [00:37:39] Speaker 02: I mean, I think the agency has always been very consistent in explaining why it denied the petition, and there's no new study or anything to cast a doubt on what the agency [00:37:49] Speaker 02: has said. [00:37:50] Speaker 02: So I think that case is very distinguishable. [00:37:52] Speaker 02: I mean, the other thing, you know, if this is really something that the court is concerned about, you know, we didn't think it was necessary, but we could certainly provide affidavits from the FAA, you know, sort of explaining these evacuation demonstrations and attesting to the fact of how they were conducted and what the results were. [00:38:08] Speaker 05: But not the studies on some kind of closed docket or in-camera basis? [00:38:12] Speaker 02: I guess my only hesitation there is that my understanding and the way the FAA has explained this to me is that the certification plan and some of the other things that would be part of this, like a schematic of the plane of the interior configuration, the FAA reviews that and approves it, but those documents often physically reside with the individual manufacturers. [00:38:35] Speaker 02: The FAA has a right to inspect and a right to access, but they generally do not physically have all of those documents. [00:38:43] Speaker 02: So sort of my first offer is, you know, if a declaration from the FAA would suffice, if not, then I guess we need to endeavor to procure these materials and try to submit them perhaps for in-camera review. [00:39:00] Speaker 05: I think the bigger question is, are they first on the rulemaking record [00:39:05] Speaker 05: And then when we would look at it after the fact, we would be able to assure ourselves that the agency had adequately assured itself. [00:39:13] Speaker 05: You see what I'm saying? [00:39:14] Speaker 05: So it's procedurally we're a little late in the day for, I think, for that to be an adequate remedy. [00:39:23] Speaker 05: because it should be that in the rulemaking record, you have something that tells them, you know, we have this data, it's a secret document because it's proprietary information, but we have it, and this is kind of what it is. [00:39:34] Speaker 02: Right, I guess, I mean, I'm not sure I see that only because the FAA did actually refer to these evacuation demonstrations, so this wouldn't be something that, I mean, they've said that's what they're relying on, so it's not a question of, well, you didn't know they were really relying on that. [00:39:50] Speaker 02: I mean, I think we can, I would hope we can presume that they knew what they were saying and were honest and representing what they have and what they know was conducted. [00:40:02] Speaker 02: And so we would just be sort of confirming that as opposed to offering something. [00:40:08] Speaker 04: Just to be clear, you were saying there were some aspects, I thought you were saying there were some aspects of these tests that you don't have like schematics, but do you have, [00:40:18] Speaker 04: The test results, a test report, something in your position? [00:40:23] Speaker 02: I don't know if there are physical documents residing with the FAA. [00:40:28] Speaker 02: I would have to check and get more information on that. [00:40:34] Speaker 02: Thank you. [00:40:35] Speaker 02: Thank you. [00:40:43] Speaker 01: Yes. [00:40:43] Speaker 01: Thank you. [00:40:46] Speaker 01: a couple of quick points. [00:40:48] Speaker 01: To the extent that they don't even have the documents reflecting the test results of these evacuation studies, it would be hard to [00:40:56] Speaker 01: for court to credit that the agency has, again, as a reason basis, if it's not something they even obtain and keep in their files. [00:41:06] Speaker 04: Why is that true? [00:41:07] Speaker 04: I mean, there's a lot of regulatory schemes in which the regulations require, we hear, airlines or drug companies to keep records available for inspection and test records and things like that. [00:41:20] Speaker 04: They don't all have to get sent into the government's hands, and we don't say that [00:41:25] Speaker 04: You're necessarily unreasoning your decision-making because you allow the proprietary owners to keep possession of information about their products. [00:41:33] Speaker 01: It would be hard to imagine how this agency could say that it's done its job to ensure that it's enforcing its own regulations and all these detailed [00:41:42] Speaker 01: criteria, albeit not with seat size and leg room, for conducting emergency evacuations when they don't have any record at all for a particular aircraft that a test was conducted and what the results were. [00:41:58] Speaker 04: What if the FAA said, hi, this is Ms. [00:42:02] Speaker 04: X. She's in charge of going and observing these tests when conducted by airline companies. [00:42:07] Speaker 04: She's been to five. [00:42:09] Speaker 04: They have consistent with regulations tested with 28 inch pitch seats with people from a variety of size, age, and body types. [00:42:20] Speaker 04: and found, supervised, and agreed with their assessment that safe egress can occur at 28 inches. [00:42:27] Speaker 04: Wouldn't that suffice? [00:42:28] Speaker 04: We wouldn't have to actually have the records, would we? [00:42:30] Speaker 01: I think there would have to be some stage. [00:42:32] Speaker 01: It would be difficult. [00:42:34] Speaker 01: That would raise, I think, pretty significant concerns if that observer from the FAA had no record, had no notes. [00:42:40] Speaker 01: There was no agency record that they could comply. [00:42:42] Speaker 04: We're not reviewing a rulemaking here. [00:42:44] Speaker 04: We're just reviewing a decision not to make a rulemaking. [00:42:47] Speaker 04: I don't know that we're going to start requiring [00:42:50] Speaker 04: an elaborate record, are we? [00:42:52] Speaker 01: I think that our understanding of what the agency's position here was that there are, it wasn't that they didn't have the records, but that they have the records, but the information was proprietary. [00:43:06] Speaker 01: But maybe that's not sufficiently clear in the record. [00:43:09] Speaker 05: Let me ask if, given what [00:43:13] Speaker 05: The FAA has said maybe some of the information they don't have, maybe some of it's proprietary, even if we were able to see it, there's obviously a separate concern about your ability to challenge the conclusion that they have based on it. [00:43:27] Speaker 05: And I'm guessing it would make a difference to you whether they have, for example, [00:43:31] Speaker 05: taken into account the actual average size of flyers. [00:43:37] Speaker 05: So what would you need short of the actual studies chapter and verse and the actual diagrams chapter and verse that you think would allow you to [00:43:46] Speaker 05: to challenge? [00:43:47] Speaker 05: Do you need the protocols, the criteria? [00:43:50] Speaker 01: I think the actual, well, I mean, we understand there are videos that have been taken that the agency itself may have, but something basically that there's a record showing the basics of the configuration of the aircraft, [00:44:07] Speaker 01: with respect to the criteria specified in the regulation, and including the size and pitch of the seats in each class of passenger service. [00:44:18] Speaker 01: They have to do that for every aircraft? [00:44:19] Speaker 01: And the results of the test, whether they made it, everyone was able to get out in 90 seconds under those conditions. [00:44:26] Speaker 03: You understand all the problems of trade secrets. [00:44:31] Speaker 03: that type of thing, don't you? [00:44:32] Speaker 03: I mean, that's why I'm trying to understand what we're doing in this. [00:44:36] Speaker 03: This is not a rule-making. [00:44:37] Speaker 03: It's the agencies heard you. [00:44:41] Speaker 03: It said we have all this right. [00:44:43] Speaker 03: First of all, it said your basic premise is wrong. [00:44:47] Speaker 03: All right? [00:44:49] Speaker 03: We're not into health. [00:44:50] Speaker 03: Go talk to them. [00:44:51] Speaker 01: All right. [00:44:52] Speaker 03: No, no. [00:44:53] Speaker 03: I'm serious about that. [00:44:54] Speaker 03: That's where you started. [00:44:56] Speaker 03: All right. [00:44:56] Speaker 03: Then you came back and said, no, no. [00:45:00] Speaker 03: I'm going to look at safety. [00:45:02] Speaker 03: And the agency says, we've covered the roadmap on safety. [00:45:06] Speaker 03: And that's not what you're challenging in the sense of you haven't said our regulations on safety need to be changed. [00:45:16] Speaker 03: All right. [00:45:17] Speaker 03: So now we're into the we. [00:45:20] Speaker 03: And that's what I'm concerned about. [00:45:21] Speaker 03: In the prosecutorial side, Heckler v. Cheney sort of didn't get any of this background information about why the prosecutor decided not to go forward. [00:45:30] Speaker 03: So here the agency says, you know, we've got a lot of priorities. [00:45:33] Speaker 03: We've got these exploding telephones, cell phones, et cetera. [00:45:38] Speaker 03: And we think our safety regulations are adequate. [00:45:44] Speaker 03: And if you don't like them, petition to amend those. [00:45:48] Speaker 03: Whereas the health issues, you're talking to the wrong administrator. [00:45:55] Speaker 01: Well, first of all, with respect to the health issues, we think the agency, and this is in our briefing, has misconstrued its own statutory authority. [00:46:05] Speaker 01: No, I know. [00:46:05] Speaker 03: I know. [00:46:05] Speaker 03: But you basically abandoned that when you got to your reply break and you tried to argue they're all into quantum. [00:46:10] Speaker 03: But I'm just trying to understand what the court's role is, the Judge Hillard question. [00:46:16] Speaker 03: And when she tried to get you to respond, you basically said, you want the manufacturer to turn over all its records. [00:46:28] Speaker 03: At least those that it showed to the FAA. [00:46:33] Speaker 03: And I thought, wait a minute, what are we getting into here? [00:46:36] Speaker 01: I think we, Your Honor, we want the FAA to turn over its records to this Court because the administrative record of any agency decision has to include the factual basis for it in a way that the Court can determine whether it exists. [00:46:55] Speaker 03: In the Safe Extensions case, this- So we received an affidavit. [00:47:00] Speaker 03: from whoever the person in the FAA is who has responsibility for overseeing these evacuation studies. [00:47:13] Speaker 03: And that sworn affidavit said, you know, I, Jim Jones, have all this qualification and I'm, and the bottom line is, [00:47:25] Speaker 03: These evacuation studies have adequately addressed seat size and pitch in a manner that is consistent with the FAA's regulations. [00:47:40] Speaker 03: sufficient? [00:47:41] Speaker 01: It would not be sufficient, but it would be sufficient if they said either I observed or people under my supervision observed the following situation and this was the result. [00:47:50] Speaker 01: That would be a different story. [00:47:52] Speaker 03: I don't understand that. [00:47:54] Speaker 03: I'm assuming there are many paragraphs to this affidavit, but they're not going to tell you that, you know, the Boeing plane versus [00:48:01] Speaker 03: Brumman plane and things like that, they're not going to get into what I'll call trade secrets about how we configure our seats and how we get more passengers than the other guy, that sort of thing. [00:48:14] Speaker 01: Well, the time it takes to evacuate aircraft with certain configuration, including seat size and pitch, can hardly be a [00:48:22] Speaker 01: itself a trade secret. [00:48:25] Speaker 01: The court said in the Safe Extensions case that the agency's declaration of fact that is capable of exact proof but is unsupported by evidence is insufficient to make the agency's decision non-arbitrary. [00:48:39] Speaker 03: All right? [00:48:40] Speaker 03: But that's what I'm getting at here. [00:48:42] Speaker 01: Well, denial of rulemaking, there still has to be a reasoned basis. [00:48:46] Speaker 01: And to the extent there's a factual basis for it, the court has to be able to see what the factual evidence was relied on. [00:48:54] Speaker 03: Well, but we have a sworn affidavit from an official in the administration telling us what his or her qualifications are. [00:49:08] Speaker 03: I mean, we do this all the time in the FOIA context. [00:49:10] Speaker 03: We take these affidavits and basically defer to them. [00:49:16] Speaker 03: We're not getting all the background information. [00:49:20] Speaker 01: It depends on how conclusively the affidavit is. [00:49:22] Speaker 03: Well, I understand that. [00:49:23] Speaker 03: But, I mean, my point is what you're suggesting is you really want the raw data. [00:49:30] Speaker 01: Well, just enough data, again, so that the court can satisfy itself. [00:49:35] Speaker 01: Yeah, these tests were conducted taking this criteria into account, and therefore, the agency discharged its duty to consider safety. [00:49:44] Speaker 03: My second question would be, suppose you're interested in criteria one and two, but the evacuation tests that have been developed in a manner consistent with the FAA safety regulations, [00:50:00] Speaker 03: do not include those elements. [00:50:06] Speaker 01: Again, the agency would have to have some explanation as to why that factor isn't considered a safety factor. [00:50:15] Speaker 01: There are studies in the certified administrative record that the FAA says, well, these factors [00:50:23] Speaker 01: These studies show what factors we've tested that do affect evacuation times, but none of those studies have considered the factor of seat size and legroom. [00:50:37] Speaker 01: And just a final point with respect to Your Honor's reference to the agency has discretion to set [00:50:43] Speaker 01: priorities to be sure, but we would ask the court to contrast this situation with the decision, for example, in the Wild Earth Guardians case where the EPA said we have other priorities and air pollution rules, and they set out a detailed basis of why these other rules that they had prioritized would cut air pollution more than the one that petitioners was asking for. [00:51:04] Speaker 01: Here we just have a conclusive statement. [00:51:06] Speaker 01: It's not consistent with our priorities, and we respectfully submit that's insufficient. [00:51:10] Speaker 03: Thank you. [00:51:11] Speaker 03: We'll take the case under advisement.