[00:00:00] Speaker 04:
Case number 19-1048, Brotherhood of Maintenance of Way Employees Division, IVT Petitioner versus United States Department of Transportation at L. Mr. L. Petitioner is here today for the Respondents and Mr. Dupree for the Attorney General.

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Morning, Ms.

[00:00:18] Speaker 06:
Redelman.

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Morning, Your Honors.

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I'm Richard Edelman, Counsel for the Brotherhood of Maintenance of Way Employees.

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With the Court's permission, I would like to reserve two minutes of my time for a bottle.

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In this case, the Federal Railroad Administration suspended the track safety regulation governing the frequency of manual visual track inspections under another regulation that permits a suspension if it is necessary for a test to evaluate new technology or operational approaches and the suspension is subject to conditions to assure safety.

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The MWE contends that neither requirement was satisfied here.

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I plan to focus initially on the necessity finding and then we'll address the safety condition issue if time permits.

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Now the FRA's decision and its public notice summarily stated that the suspension was necessary for the test, which was expressly described as one to test automated track inspection technologies.

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But FRA did not actually explain why the suspension of the regulation was necessary to test the new technology.

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that the purpose of the test was to assess the new technology was clearly stated in the decision and the notice.

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The decision said the test was designed specifically to test the unmanned geometry car as a viable alternative to manual visual inspections and to test it as an optical visual platform to supplement manual visual inspections.

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The title of the notice in the Federal Register described the test as one to evaluate automated track inspection technologies.

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There are numerous other references in the decision and notice.

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It surely could have been clearer, but it does talk about utilizing track inspection technologies while evaluating appropriate supplemental manual inspection parameters.

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So there is some communication about

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the combinations and then the description of phasing also seems to clearly propose different combinations.

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Well, I understand that they've noted that what they were going to do was somewhat reduce the frequency with which the manual visual inspections were done, but every description of the purpose of the test

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said, we are testing new technologies.

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This is technology we want to try out to see if it is a viable alternative to manual visual inspections.

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And the FRA did not even attempt to justify a conclusion that the suspension was necessary to test the equipment.

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But again, as Ronner notes, they talk about

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This is mentioned in the decision on reconsideration of testing some optimal mix between manual visual inspection.

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Isn't that pretty much inherent in the idea of testing something as an alternative?

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I mean, I suppose there are occasions where you test something as an alternative, meaning

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sort of an on-off switch, all this or all that.

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But I would think for ordinary mortals accustomed to the need for information from different kinds of sources, the more natural reading would be, what would a good mix be here?

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Well, Your Honor, I think I actually referred to a dictionary definition than one could look to many others.

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An alternative is usually actually described as

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as either or, but more to the point, if you look at the record, if you look at everything in the FRA record leading up to the final decision, there isn't a mention of the mix.

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And when you look at the... When you talk about the final decision, you're not talking about the

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denial of the petition for reconsideration.

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So I'm talking about, first of all, everything in the record leading up to including the denial of reconsideration.

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And when you look at the denial of reconsideration, Joint Appendix, page 120, that's where they say, oh, actually, this is about testing the best mix of manual visual and automated.

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there is no citation to the record to support that.

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If you look at page 120 there... It would be pretty apparent, I mean apart from a sophisticated notion of alternative, wouldn't that be implicit in the phases that were involved, the gradual

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diminution in the visual inspection?

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I don't think so, Your Honor.

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Looking for something that maximizes the

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information at a reasonable cost.

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Well, I would submit not, Your Honor, because the phasing was a matter of increasing the amount of, increasing the amount of automated, decreasing the manual, because after all,

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The track safety regulation, which uses this track safety standard, says this track, most of this track, is supposed to be inspected twice a week.

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The idea of actually phasing that up was posited by the FRA as something to assure safety, which is the other element.

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It was not used as a description of what the purpose of the test.

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So I have a more fundamental question, which is about, there is kind of a chicken and egg problem.

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when you have a technology which the agency alternatively describes as new and also known for 30 years, but you have something about which certain capacities are unknown, and you need to put it into operation and test to see whether it can be used in a new way or in a new scope.

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And the thing I don't follow is your contention that there could be a bona fide test

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with the continuing inspection going along and remediation, because if there's continuing manual inspection and remediation, we don't know what contribution the automated technology will make in the absence of the same frequency of manual inspection.

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If what you are testing, which is what they said, is to see how the new technology works, they can be done side by side.

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The track inspectors can do their regular jobs, twice a week inspecting the track, and the machine goes over, and the machine can pick up whatever defects it picks up.

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So if that is your test, then they can certainly be done maintaining the current level, because

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Our people are doing the track inspections, and the machine goes over.

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One does not preclude the other.

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Now, Your Honor, basically the information provided by the larger number of visual inspectors.

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I'm sorry?

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What would the railroad do with the information provided by the extra number of inspectors?

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Well, first, it's not an extra.

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Would you sort of block it out on a kind

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Random basis?

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First of all, it's not an extra number.

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It's the current number.

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By the status quo, but then it would be fixed.

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So then the automated would be the same.

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So first of all, if they actually wanted to do this as well, they could document both.

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In fact, one might actually say a straight up comparison between what the inspectors find and what the machines find would provide more validity.

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Well, that might be one approach, but does that make the agency's approach arbitrary and capricious?

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Yes, if the agency did not describe the purpose of the test as to test the technology.

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Working backwards from the denial of reconsideration that has no predicate in the record.

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There is nothing in the record that says this is the purpose of the test to examine the mix.

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But this court frequently considers denials of reconsideration.

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I'm sorry?

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This court frequently considers denials of reconsideration as part of the record.

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Absolutely.

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And I don't deny they can do it if it was actually a clarification of or an expansion of the reasoning in the decision itself, not an entirely new rationale, which as we saw in the Supreme Court's decision in the Department of Commerce, they can't make up a decision

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make up a rationale after the fact.

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And the record, which we've highlighted, it is all about testing the new technology.

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There is not a single statement in BNSF's petitions, in the communications between the FRA and the BNSF, in the decision itself that the purpose of this test is to assess this mix of the two.

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The idea was to take existing technology, these geometry cars, and use them for something they've not been used for before and see how they do.

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That's a test of the technology.

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And there is nothing in the record.

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BMSF never said that in their petition that that's what they were going to do.

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I understand that they said they were going to reduce the number of manual inspections to help see what the machines do.

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Your thought is that the language in the denial of reconsideration talking about evaluating combinations was just a sort of unprovoked brainwave at the RFA?

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I would say it was a post hoc rationale.

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Yes.

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Once you have it, it's post hoc.

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Well, because there's nothing to support it in the record.

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That doesn't make it.

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It may make it unreasoned, but it doesn't make it post hoc.

[00:10:17] Speaker 05:
OK.

[00:10:18] Speaker 02:
All right.

[00:10:18] Speaker 02:
Well, they came up with that explanation after the entire six months of communications and 500 pages of documents back and forth.

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But you make it sound as something that a rational person couldn't have discerned from

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the materials before it.

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Well, I guess... I submit that if, Your Honor, that it's not there and you shouldn't have to go looking for it.

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If the agency has a purpose of the test and to say that it's necessary, then they need to say, well... If you were right on that, that there's no root in the original decision for the reasoning that was elaborated in the reconsideration decision, then the remedy would be

[00:11:04] Speaker 06:
they came in remand or potentially if we think there's a basis for justification, remand without vacature and then what would happen that would

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that would materially aid your clients?

[00:11:18] Speaker 02:
Well, I would say that you would vacate and remand, and if they want to do it this way, they should do a proceeding that's a public proceeding in which we can participate and address the various issues, including necessity.

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Our people are the actual track inspectors.

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Nobody got any ability.

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The things that we're talking about now, nobody from the union got to say.

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Nobody who actually does this work got to participate in any of that.

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Although now there are in the record that before us there are declarations from various of these track inspectors.

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Right, yes.

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But there are other things that the union would want to submit?

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Yes, sure.

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And that's what we got as it began to develop.

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But I think it's a proceeding to actually examine this and decide whether it's necessary and whether the conditions there are safe is what actually was called for, and that didn't happen.

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Thank you.

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Thank you.

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May it please the court, I'm Dana Karason for the government and I will be sharing time with counsel for the intervener in this case.

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The agency here reasonably approved this test program with a temporary suspension of the twice a week visual inspections for this section of freight track in Nebraska and Wyoming in order to test the different combinations of visual and automated inspection technology.

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And you can see that from the test structure itself, which has these different phases,

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and each phase involves a different combination.

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Although I think Mr. Edelman's reading of that is arguably also reasonable, which is we're gonna phase it in carefully.

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with an aim to full substitution, but of course because it's a transition and there are some unknowns, we're gonna do that, we're not gonna go zero to 60 overnight, we're gonna go zero to 15 to 30 to 45 to 60 in phases so that we know we can handle it.

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And what's your best place in the record, in the original decision,

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where you think this mixed rationale that's much clearer in reconsideration is at least presage.

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Right, so I do think just in the Federal Register, it lays out this test program and it says therefore it's necessary, right.

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That sets that up.

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But looking at the agency's decision letter, it talks about testing inspection methodologies, talks about evaluating appropriate supplemental technologies.

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But here... Can you give us a page?

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J60.

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for inspection methodologies.

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But remember, the decision on review is the reconsideration decision, which connects those dots that you saw in the Federal Register from here is the test with these different, testing these different mixes, and then on reconsideration at JA120, the agency explains that the purpose of this test is to test these different mixes, and JA120

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116 and also you see this in their original request for the test at J55.

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There's really exciting potential here because this is a possibility to, instead of having people every two weeks go up and down the track, we know people miss things.

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Can we use this technology, can the railroads use this technology to get reams and reams of data about the state of the track at every moment and over time and see how it's changing and send inspectors to the places where problems might be developing before that even starts, before the problems start.

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The railroad talks about that in their proposal at 55.

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The agency talks about it in the decision at 116.

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This potential to stop problems before they start is

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very interesting to the agency, and as the agency explained at 120, it can't get the data about how this all works if the two inspection regimes are happening simultaneously.

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I was, I mean, I think there's a real, as I said, chicken and egg problem, but in your own briefs, I think it's page 12, you describe this as new technology.

[00:16:01] Speaker 06:
On page 13, you say it's trying to prove using it for 30 years.

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So what do we make of that?

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It's familiar, it's new.

[00:16:09] Speaker 06:
What's new about it?

[00:16:10] Speaker 04:
Yeah, the timeline of railroad inspections are such that people have been going up and down train tracks and looking at the tracks for much longer than 30 years.

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That's the old technology.

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And then the use of the automated technology as a straight supplement just will add the automated

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to the tracks and continue doing the visual.

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That we've also been doing.

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The agency itself has a fleet of these automated inspection systems that it runs on Amtrak Line.

[00:16:47] Speaker 04:
But what is new and exciting here... I'm sorry, what does that mean?

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You said a straight supplement.

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What does that mean?

[00:16:52] Speaker 04:
Oh, I'm sorry.

[00:16:53] Speaker 04:
What I meant was...

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Let's see if we run the visual inspection and the automated inspection on the same track at roughly the same time.

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What's picking up more?

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And you can see it, for example, JA-18, this chart that shows the automated inspection is catching this much, the visual inspection is catching that much.

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We know that these automated inspections have the potential to catch a lot of things that the visual inspections don't catch.

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What's new here

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But different things, and I thought that some of the agency's presentations were somewhat artful in talking about numbers of things caught, but the union was pretty clear in saying that there are types of things that are not really that well caught by the geometry.

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Sure, so the agency addressed this in 121 at the decision.

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These things that visual, there are things that visual inspections are going to catch earlier.

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Most things, the automated inspection will catch earlier, but there are some things visual inspections will catch earlier.

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Now, most of those things will affect the tract geometry before they cause a problem.

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And the automated system, because it has the potential to detect these very minute changes in tract geometry, should be able to identify these things before they actually become a problem that could cause a derailment.

[00:18:14] Speaker 04:
There are other things, vegetation, growing up, blocking a signal, that could lead to an accident and a derailment, and the automated system doesn't catch that.

[00:18:23] Speaker 04:
But plants don't grow that quickly, so twice a month inspection ought to catch that.

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You clearly have not been in my garden.

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The weeds grow four feet in a weekend.

[00:18:35] Speaker 04:
Well, this is a test on a defined section of track in Nebraska and Wyoming to make sure that this actually does work.

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And the thing that's new here, I do want to go back to that because there is a lot of potential here

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to make railroads safer.

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The agency is interested in this data because of the potential that it could lead to new safety regulations that make trains more safe by using the data from these automated systems to see where are there slight changes from

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from time to time that a person would not have had any way to see but can tell the railroad that a problem is developing there and then send the inspector to that part to look at it very carefully instead of having a person go the whole track where we know that they're missing things.

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So the point of the regulation here, the ability to

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to grant these suspensions of regulation is to allow for this kind of test to look at whether there are ways to make things safer and to lead to these kinds of improved

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improved technologies.

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And I do want to say one quick thing about assuring safety, which is the way this test is set up, you can see if you look at the chart in the Federal Register, the third column shows that at every stage the safety metrics get more challenging to meet.

[00:20:03] Speaker 04:
So with visual inspection

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The baseline is they're missing about seven 6.95 defects per 100 miles of track.

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And at each stage, they have to show that there are fewer defects per 100 miles of track.

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So that's how we're assuring safety.

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That's how we're making sure that these things that the automated system is not as good at catching as quickly aren't making the tracks less safe overall.

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If there are enough for the questions, I ask the court to

[00:20:35] Speaker 06:
Mr. Dupree.

[00:20:44] Speaker 01:
Thank you, Your Honor.

[00:20:45] Speaker 01:
Tom Dupree on behalf of the intervener of the Association of American Railroads.

[00:20:49] Speaker 01:
Judge Rao has exactly right in that the question before this court is not did the agency choose the best course, the only course.

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The question before this court is did the agency choose a rational, non-arbitrary way

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of gathering this data so that it could then be in a position to evaluate whether these new testing methodologies work.

[00:21:07] Speaker 01:
Judge Pillard, you asked about where the agency said in its original order about the idea that this is in fact a mix, that it's not as though the automated technology will fully replace the old-fashioned way of doing it.

[00:21:19] Speaker 01:
On JA-68, the agency in its original order states in reference to the optical visual platform, which is the automated technology, or one of the automated technologies at issue,

[00:21:29] Speaker 01:
They say the purpose is to test an optical visual platform to supplement manual visual inspections.

[00:21:37] Speaker 01:
And of course the concept that these automated technologies will be working in tandem with the old fashioned manual visual inspections

[00:21:46] Speaker 01:
is further made apparent by the remainder of the order, where it clearly lays out in a four-phase structure that I think Your Honor correctly described as baby steps.

[00:21:55] Speaker 01:
This is a process that is rolling out under the extremely close, effectively real-time supervision of the Federal Railroad Administration.

[00:22:04] Speaker 01:
They're seeing the data as it comes in, they're conducting their own double-checking to make sure everything is going along well,

[00:22:10] Speaker 01:
And of course, before BNSF is permitted to progress from one phase to the other, the agency has to review what's come in, sign off on it to make sure that everything is going exactly as it should.

[00:22:21] Speaker 01:
BNSF currently has basically completed phase two.

[00:22:25] Speaker 01:
The results, in fact, dramatically exceeded the expectations and the target.

[00:22:30] Speaker 01:
And we anticipated that it would catch a certain number of defects and you'd achieve a certain level of safety.

[00:22:35] Speaker 01:
And in fact, the results from phase two dramatically exceeded

[00:22:38] Speaker 01:
in terms of overall performance where we expected the automated technologies to go.

[00:22:43] Speaker 06:
We don't have a record of that, right?

[00:22:45] Speaker 06:
Because that's post.

[00:22:47] Speaker 01:
That's true.

[00:22:47] Speaker 01:
That's not in the record because it's post-decision.

[00:22:49] Speaker 01:
But of course, the testing went on up through the end of phase two during the pendency of this appeal.

[00:22:55] Speaker 01:
And again, the early returns vastly exceed expectations in terms of the safety benefits.

[00:23:00] Speaker 01:
that are being delivered.

[00:23:01] Speaker 01:
So this is really just a test both of technology but also of methodologies.

[00:23:06] Speaker 01:
Because of course a critical element of this new technology is that rather than have inspectors spend their days walking up and down 50 mile stretches of track looking for loose joints and bolts and the like, the technology alerts them to places where they need to focus their attention.

[00:23:21] Speaker 01:
So that's the answer to their argument when they say, well, why can't you do both at once?

[00:23:26] Speaker 01:
That's why you can't do both at once, because the new methodologies require redeploying the inspectors, not to spend their days following just the endless march up and down the line as required by the regulations, but rather to see what the data is generating.

[00:23:41] Speaker 01:
When it says, hey, there might be a problem at mile 32 to 34,

[00:23:45] Speaker 01:
They redeploy, they go out and they inspect it.

[00:23:48] Speaker 01:
And as I said, phase two shows that this is working marvelously.

[00:23:51] Speaker 01:
So for those reasons, we ask that the petition be denied.

[00:23:54] Speaker 06:
I know it's not in the record on appeal, but is that public anywhere?

[00:23:58] Speaker 01:
Well, we've certainly communicated to FRA, so in that sense, it's public.

[00:24:02] Speaker 06:
I'll see if we could submit some sort of... Just curious in terms of public facing, whether it is.

[00:24:07] Speaker 01:
Right.

[00:24:07] Speaker 01:
I'm not aware that they publicly reported the reports, but again, we've made FRA aware of it.

[00:24:13] Speaker 01:
Just curious.

[00:24:14] Speaker 06:
This notice is one of the concerns for the workers, so I was just curious about whether that's... Right, right.

[00:24:19] Speaker 00:
I understand.

[00:24:19] Speaker 00:
Well, it's entirely possible, since obviously the workers are part and parcel of this, that they're well aware of what the early results have shown.

[00:24:25] Speaker 00:
That would seem so.

[00:24:26] Speaker 00:
Thank you.

[00:24:31] Speaker 06:
Mr. Edelman, you have no time remaining for rebuttal, but we will, as is our custom, give you two minutes.

[00:24:36] Speaker 02:
Thank you.

[00:24:36] Speaker 02:
I appreciate it.

[00:24:37] Speaker 02:
Quickly, we don't dispute the potential value of the technology.

[00:24:41] Speaker 02:
What we dispute is the application of the regulation.

[00:24:44] Speaker 02:
The regulation requires a necessity finding.

[00:24:46] Speaker 02:
The necessity finding needs a rational basis in the record.

[00:24:50] Speaker 02:
Again, if there really was part of this,

[00:24:55] Speaker 02:
JA120, where they tried to explain the rationale, would have cited something, something BNSF filed, something that the agency said earlier.

[00:25:03] Speaker 02:
They don't.

[00:25:06] Speaker 02:
They don't say that, and when you look at that you're going to supplement

[00:25:11] Speaker 02:
manual visual inspections, one can supplement the manual visual inspections without changing them, without changing the car frequency of doing them.

[00:25:20] Speaker 02:
You're just running the optical visual machine in addition.

[00:25:25] Speaker 06:
What about Mr. Ducree's argument that part of the system for which the test is designed, that the test is designed to test,

[00:25:34] Speaker 06:
is whether the workers could actually be deployed in a more efficient way and raise safety overall by using the technology and sending the workers to places where potential problems are.

[00:25:45] Speaker 02:
Absolutely nothing in maintaining the current schedule would preclude that.

[00:25:50] Speaker 02:
They can still deploy those workers to do focused inspections.

[00:25:55] Speaker 02:
They can work overtime.

[00:25:57] Speaker 02:
They can increase the roster of track inspectors.

[00:26:00] Speaker 02:
There are other people who have track inspector seniority who could do that work.

[00:26:05] Speaker 02:
There is nothing in maintaining the regular schedule that would preclude the railroad from assigning inspectors to do focused inspections

[00:26:13] Speaker 02:
based upon the data that came out of the machine.

[00:26:18] Speaker 02:
Again, the idea, Mr. Preet talked about the new methodology, again, it's not stated anywhere in the record.

[00:26:27] Speaker 02:
Last, with regard to the current progress as you already noted, that's not anywhere in this, and in fact, our people have submitted affidavits in support of this day saying there were problems.

[00:26:39] Speaker 06:
Thank you.

[00:26:40] Speaker 06:
Cases submitted.