[00:00:04] Speaker 01:
Case number 19-1075, UN Pacific Railroad Company petitioner for some heightening, height-flying, and positive aerial safety administration at L.

[00:00:51] Speaker 04:
Good morning, Your Honors.

[00:00:52] Speaker 04:
May it please the Court.

[00:00:54] Speaker 04:
In the FAST Act of 2015, Congress directed the Department of Transportation to establish security and confidentiality protections to prevent the release to unauthorized persons of the information that railroads must disclose to state and local authorities under the Act.

[00:01:11] Speaker 04:
That specifically includes the advanced notification information at issue here, which is regularly updated county-by-county data on the routes

[00:01:20] Speaker 04:
number, contents, and emergency response plans for each railroad's trains carrying certain hazardous materials.

[00:01:29] Speaker 04:
But the agency failed to establish any security or confidentiality protections for this information because it had already concluded before Congress passed this statute that this information was not proprietary or security sensitive under pre-existing federal regulations.

[00:01:44] Speaker 04:
That position is unlawful for three basic reasons.

[00:01:48] Speaker 04:
First,

[00:01:49] Speaker 04:
Congress expressly directed DOT to establish security and confidentiality protections not only for proprietary and security-sensitive information, and not only for the real-time information that the government emphasizes in its brief, but for any information railroads disclose under this statute, expressly including the advance notification information issue here.

[00:02:10] Speaker 03:
Second... Wait, so is your position

[00:02:16] Speaker 03:
that Congress meant to prevent the release to the public, period.

[00:02:22] Speaker 04:
Is that right?

[00:02:22] Speaker 04:
Both categories of information.

[00:02:23] Speaker 03:
No, but no, you just said it doesn't matter whether it's security and confidentiality.

[00:02:27] Speaker 04:
Yes, that's correct.

[00:02:28] Speaker 03:
So then why begin?

[00:02:29] Speaker 03:
If that's true, and that is how I understood your argument, your argument is that any information that's provided to the railroads at the end of a very long sentence here with three or's has to be prevented.

[00:02:45] Speaker 03:
then why is Congress wasting so many words?

[00:02:49] Speaker 03:
Why say established security and confidentiality protections when they really mean no one can get it except for the fusion center and the resource center or whatever it's called?

[00:03:00] Speaker 04:
I think established security and confidentiality protections is a fairly natural way for Congress to say.

[00:03:05] Speaker 03:
Not if what they really mean is don't release it at all even if it has nothing to do with security or confidentiality.

[00:03:13] Speaker 02:
That is your position, right?

[00:03:14] Speaker 02:
Your argument is that its confidentiality is automatically involved because this information, before the mandated disclosure, had not been disclosed.

[00:03:27] Speaker 02:
Is that right?

[00:03:28] Speaker 04:
Yes, Your Honor, that's correct.

[00:03:29] Speaker 04:
This information was first required to be disclosed in DOT's emergency order in 2014

[00:03:35] Speaker 04:
And after that, there was a period of about a year and a half where the agency essentially flip-flopped on whether this information should be protected from public disclosure more broadly than the listed recipients in the emergency order.

[00:03:50] Speaker 04:
And it essentially took the position, although not without some inconsistency, that this information could not be protected from broader public disclosure because it was not proprietary or security sensitive under DOTs and TSAs regulations governing that information.

[00:04:07] Speaker 02:
But... I think I understand that argument.

[00:04:10] Speaker 02:
But what I'm somewhat puzzled by is that

[00:04:16] Speaker 02:
I see two things.

[00:04:18] Speaker 02:
You appear to be contending that there are serious proprietary interests in the information in dispute here.

[00:04:29] Speaker 02:
Yes, Your Honor.

[00:04:30] Speaker 02:
But you also, at no point so far as I can see, have offered evidence or a hypothetical suggesting how

[00:04:42] Speaker 02:
Any particular snippet of this information might create a problem.

[00:04:48] Speaker 04:
Well, the key aspect of the information that is required to be disclosed under the FAST Act is that it includes the routes that the trains take by county for each railroad.

[00:04:58] Speaker 04:
And the government emphasizes that this information does not include, for example, origins, destinations, or customers.

[00:05:05] Speaker 04:
But if you have county by county information about each railroad's routes by which its trains carry hazardous materials, it's not actually that difficult to figure out a lot of that information, which the government seems to agree is sensitive.

[00:05:18] Speaker 04:
And this is actually a point that the Association of American Railroads made in its comments on the rulemaking.

[00:05:25] Speaker 04:
I'm sorry, where are those comments?

[00:05:29] Speaker 04:
Those comments are in the JA at 109, Your Honor.

[00:05:35] Speaker 04:
And I believe actually, I'm sorry, the agency also noted this point in the, I believe it's in the NPRM at J119.

[00:05:45] Speaker 04:
But our point, Your Honor, is that whether or not this information qualifies as proprietary or security sensitive under the pre-existing regulatory regime, Congress in the FAST Act essentially said to the agency, that doesn't matter.

[00:06:00] Speaker 04:
What you need to do with both categories of information

[00:06:03] Speaker 04:
listed in the confidentiality provision here is prevent the release of this information to unauthorized persons.

[00:06:09] Speaker 03:
So I... But then why don't... I'm still stuck with why don't they say that.

[00:06:13] Speaker 03:
So normally we presume that Congress knows what the words mean, particularly in this kind of context.

[00:06:20] Speaker 03:
Certainly.

[00:06:20] Speaker 03:
And security and confidentiality protections have defined meanings in the regulations, right?

[00:06:26] Speaker 03:
And that's not recent.

[00:06:28] Speaker 03:
That's since TSA began, since 9-11.

[00:06:32] Speaker 03:
So they've had these in 49 CFR and they have concluded both Homeland Security and DOT that this information doesn't qualify under those definitions.

[00:06:44] Speaker 03:
So if Congress wanted to do more, then I don't see why they would continue to use the same words, exactly the same words as are used in the regulations.

[00:06:56] Speaker 03:
Why don't they just say what you said, which is,

[00:07:01] Speaker 03:
public doesn't get this information, period.

[00:07:03] Speaker 04:
So two points there, Your Honor.

[00:07:05] Speaker 04:
First, as I understand the government's own construction of this language, and certainly this is how we read it, the reference to the pre-existing security and confidentiality provisions that you refer to, the DOT and TSA regulations in 49 CFR, is in the including clause.

[00:07:23] Speaker 04:
That's including protections from the public release of proprietary information or security sensitive information.

[00:07:28] Speaker 04:
And if that were the only thing the government had to do, then this would be a very different case.

[00:07:32] Speaker 04:
But that information is a subset of the information that this provision expressly tells the agency to protect.

[00:07:40] Speaker 04:
The agency must establish protections, including protections for proprietary information or security sense of information, to prevent the release to unauthorized persons of any electronic train consist information, that's the real time info that's not at issue here, or advanced notification or information provided by the railroads.

[00:07:57] Speaker 04:
And that's the information that is at issue here.

[00:07:59] Speaker 03:
But what does OR mean?

[00:08:02] Speaker 03:
So if your position is to prevent the release to unauthorized persons of any electronic train, consist information and any advanced notification, and any information provided by class one railroads, that's what you think it means, right?

[00:08:18] Speaker 03:
I think that's the only way to read this language.

[00:08:20] Speaker 04:
If you take the OR here to give the agency the option, then

[00:08:26] Speaker 04:
I think Congress would basically be saying, you can sort of pick among the categories to protect.

[00:08:31] Speaker 04:
Right, right.

[00:08:32] Speaker 03:
And that exactly is the agency's point.

[00:08:34] Speaker 04:
Certainly it is, Your Honor.

[00:08:35] Speaker 04:
But if you read the or purely disjunctively, then it implies the agency has to pick fewer than all.

[00:08:41] Speaker 04:
And I don't think that's the implication of the language here.

[00:08:43] Speaker 03:
Well, but that's the ambiguity that is created by.

[00:08:47] Speaker 03:
This is no model of draftsmanship, as I'm sure you would agree.

[00:08:50] Speaker 03:
Absolutely.

[00:08:51] Speaker 03:
And every time I read it, I see something different.

[00:08:54] Speaker 03:
But the words, the continuing use of or, it has an inclusive meaning, and it has an exclusive meaning, and it has a disjunctive meaning, and it has an and or meaning.

[00:09:06] Speaker 03:
There's a lot of meanings of or here, and the government's, I take it the government's reading is that some of these things get one kind of protection, some of these are worthy of confidentiality and security, and some of them aren't.

[00:09:21] Speaker 04:
I agree that that is the government's reading.

[00:09:23] Speaker 04:
I don't think the government has invoked the sort of or language that you're referring to.

[00:09:28] Speaker 04:
As I understand the government's position in the final rule, it is essentially that the term unauthorized persons as used in this provision, and I think we agree with the government that that is really the crux of this language.

[00:09:42] Speaker 04:
The government says that refers, at least in connection with the advance notification information here,

[00:09:47] Speaker 04:
to state open records laws.

[00:09:50] Speaker 04:
But that's essentially Congress incorporating into this provision all 50 states open records laws so that there are only unauthorized persons insofar as any individual state would deny a FOIA request under state law for this information.

[00:10:05] Speaker 03:
With respect to the information that's not security sensitive or confidential.

[00:10:10] Speaker 04:
With respect to the advance notification.

[00:10:11] Speaker 03:
It's not all information.

[00:10:13] Speaker 03:
It's to a third group of kind of information.

[00:10:17] Speaker 04:
Yes, I think that is the government's position, Your Honor, and that simply is not a plausible reading of the term unauthorized person as used here.

[00:10:24] Speaker 04:
For one thing, it would have been very easy for Congress to refer explicitly to state law if it intended the contours of this federal confidentiality protection to vary.

[00:10:33] Speaker 04:
based on state law.

[00:10:34] Speaker 04:
And in fact, there is a strong presumption under Jerome versus United States or Mississippi ban to chalk to Indians versus Holyfield, as we cited in our reply brief, that Congress does not intend the protections of federal law to vary based on inconsistent state law, precisely because federal law is presumptively uniform across the entire country.

[00:10:52] Speaker 03:
But you're not giving it any definition either.

[00:10:55] Speaker 03:
You're giving it a zero definition.

[00:10:57] Speaker 03:
You're just saying all information can't be disclosed.

[00:11:00] Speaker 04:
Our definition of unauthorized persons, Your Honor... No, but of confidentiality and security.

[00:11:05] Speaker 03:
Your information is in everything.

[00:11:08] Speaker 03:
Your view is that everything is protected, right?

[00:11:11] Speaker 04:
Our view is certainly that both categories of information named in the statute are protected, and therefore the agency must establish protections sufficient to, as the statute says,

[00:11:20] Speaker 04:
prevent the release to unauthorized persons of that information.

[00:11:24] Speaker 02:
Then the question is... And are you saying the same level of protection is required across these categories?

[00:11:31] Speaker 04:
Not necessarily, Your Honor.

[00:11:32] Speaker 04:
I think the agency probably does have some amount of leeway under this language to vary the level of protection.

[00:11:38] Speaker 04:
But what it can't do is enact no protections whatsoever, because it concludes that some of this information is not sensitive, even though Congress explicitly named it in this provision.

[00:11:49] Speaker 04:
And the government's take, and I think the view that you articulated earlier, Your Honor, based on or, that it can choose which of these categories to protect or not to protect, might make more sense if this were a laundry list of different information.

[00:12:04] Speaker 04:
But the confidentiality provision only named two different types of information.

[00:12:08] Speaker 04:
both of which are addressed in the adjacent provisions of the FAST Act.

[00:12:12] Speaker 04:
And in that situation, it makes much more sense to conclude that Congress said, here are the two categories of information that you railroads must disclose, you DOT must establish protections to prevent the release of that information to anyone other than the authorized recipients.

[00:12:28] Speaker 04:
So Your Honor, our definition of unauthorized persons in the confidentiality provision is anyone other than the recipients for this information who are specifically described in the adjacent provisions of this statute.

[00:12:41] Speaker 04:
So if you look at paragraphs A3 and A4, Congress spelled out who should get this information.

[00:12:47] Speaker 03:
Does it say anywhere that those are the people who are authorized persons?

[00:12:51] Speaker 03:
It does not use the word authorized.

[00:12:52] Speaker 03:
If they had said that, that would be very helpful.

[00:12:54] Speaker 04:
That would absolutely be helpful, Your Honor.

[00:12:56] Speaker 04:
It does not say authorized, but that is the obvious implication here, because this is Congress telling railroads, you must disclose this information to these people.

[00:13:05] Speaker 04:
So, of course, the recipients listed there necessarily are authorized.

[00:13:09] Speaker 04:
And reading unauthorized persons in the confidentiality provision to refer to anyone other than those people

[00:13:16] Speaker 04:
is far more natural than the government's reading of that term as implicitly incorporating every state's open records laws.

[00:13:25] Speaker 04:
And the government's view on it this way.

[00:13:27] Speaker 00:
I'm interested in why you have emphasized the verb establish.

[00:13:30] Speaker 00:
You have in your brief.

[00:13:31] Speaker 00:
But as I read this regulation, they've established absolutely nothing.

[00:13:39] Speaker 04:
That is exactly our position, Your Honor.

[00:13:41] Speaker 04:
Whether you're looking at the phrase established security and confidentiality protections,

[00:13:45] Speaker 04:
or whether you're looking at prevent the release of unauthorized persons.

[00:13:48] Speaker 04:
None of what the agency did is sufficient to discharge its obligations under this language.

[00:13:55] Speaker 00:
I mean the thing, the only thing I see under 174.312C3 and that establishes nothing.

[00:14:08] Speaker 00:
It tells the railroads if you have something you want to keep secret,

[00:14:13] Speaker 00:
indicated in your notification.

[00:14:15] Speaker 04:
Yes, Your Honor, and that's a very important point because the railroads already could and did do precisely that under state law.

[00:14:24] Speaker 04:
The debate that DOT engaged in over the year and a half leading up to the passage of the FAST Act was, should we extend protections beyond what the railroads are entitled to under state law?

[00:14:36] Speaker 04:
If you read the FAST Act,

[00:14:37] Speaker 04:
merely as incorporating the existing level of protections under state law for this information, this provision has no real function.

[00:14:45] Speaker 03:
It doesn't do any damage.

[00:14:46] Speaker 03:
But it establishes something that didn't exist before, which is a requirement of disclosure.

[00:14:52] Speaker 03:
And the rest of the facts act certainly does, but not this one.

[00:14:54] Speaker 03:
No, no, no, no.

[00:14:55] Speaker 03:
I mean, the regulation has the railroad's list

[00:15:03] Speaker 03:
what they regard as confidential and secret.

[00:15:05] Speaker 04:
Yes, Your Honor.

[00:15:06] Speaker 03:
And then it has the premature of the government telling the states that the railroads think this information is covered by the state law, right?

[00:15:17] Speaker 04:
Yes, Your Honor, but practically speaking, that is exactly the situation that existed before the FAST Act.

[00:15:22] Speaker 04:
And there were no complaints that I'm aware of that states were inadvertently disclosing this information under state law, as the agency discusses in the final rule.

[00:15:32] Speaker 04:
The problem, rather, was that states were faithfully applying their open records laws to disclose this information in response to open records requests.

[00:15:41] Speaker 04:
So again, if you read this language the way the agency reads it, it has no practical effect as to this information because it ends up just preserving the status quo exactly that existed before Congress passed the statute.

[00:15:55] Speaker 04:
And that is a particularly implausible reading of this language because we know that Congress was aware

[00:16:01] Speaker 04:
of the back and forth in the agency leading up to this point.

[00:16:04] Speaker 04:
Congress explicitly codified the emergency order here.

[00:16:08] Speaker 04:
I see my time's up.

[00:16:08] Speaker 04:
I'll just finish this point quickly.

[00:16:09] Speaker 04:
The agency has consistently acknowledged that the emergency order codified here was not intended for this information to be released publicly.

[00:16:18] Speaker 04:
In the final rule at JA119,

[00:16:22] Speaker 04:
The intent of these requirements is to ensure that local emergency responders and emergency response planning officials have access to sufficient information.

[00:16:30] Speaker 04:
Or in the Paperwork Reduction Act notice at JA 19, DOT's intent in issuing the emergency order was not to cause the widespread public discussion.

[00:16:39] Speaker 03:
Your view is that this has to, that Congress was telling the agency by regulation to preempt 50 state laws.

[00:16:48] Speaker 04:
Yes, well, not necessarily preempt, Your Honor.

[00:16:50] Speaker 03:
Well, you just told me the problem was that the state laws under their records laws could release the information.

[00:16:56] Speaker 04:
But a lot of state open records laws have explicit exceptions for information that is protected under federal law.

[00:17:01] Speaker 04:
So it wouldn't necessarily take preemption to establish protection here.

[00:17:05] Speaker 04:
Any sort of federal provision that said this information is confidential would likely be sufficient to trigger protection under state law.

[00:17:11] Speaker 04:
The problem was the absence even of that.

[00:17:14] Speaker 03:
So what about the states that

[00:17:17] Speaker 03:
Are you saying every state's open records law has an exception for federal law?

[00:17:21] Speaker 04:
I would not swear to everyone.

[00:17:22] Speaker 04:
I believe the vast majority, if not all, Your Honor.

[00:17:24] Speaker 03:
So you think the rest are preempted?

[00:17:25] Speaker 04:
Yes, Your Honor.

[00:17:26] Speaker 03:
That would be... Normally we say we don't assume Congress means in a federalist system to preempt state laws if they don't say so.

[00:17:35] Speaker 03:
We normally don't think that they give the agency the authority to preempt state laws.

[00:17:41] Speaker 04:
Certainly that is a general background principle, Your Honor, but here,

[00:17:45] Speaker 04:
I think it is the only sensible reading of this provision, which does after all deal specifically with the providing of information through this federal program to certain state agencies and actors.

[00:17:58] Speaker 04:
In that situation, it is far from a stretch to conclude that Congress told the agency to establish protections that would affect the dissemination of this information under state law, which was, after all, the essential issue that was debated extensively within DOT and among industry and stakeholders

[00:18:14] Speaker 04:
leading up to the passage of the statute.

[00:18:41] Speaker 01:
May it please the Court, Sir Smithsonian for the Federal Respondents.

[00:18:46] Speaker 01:
Section A mandates that the railroads have to disclose different kinds of information.

[00:18:53] Speaker 01:
And some of that information is obviously sensitive.

[00:18:57] Speaker 01:
And for that information, namely the train consist information, that is in rulemaking proceedings now.

[00:19:03] Speaker 01:
There are no rules on it.

[00:19:05] Speaker 01:
But when there are rules, the agency is going to have protections

[00:19:10] Speaker 01:
that are sufficient to meet the requirements of the statute.

[00:19:14] Speaker 01:
Because that information, one can see, is very important to first responders.

[00:19:18] Speaker 01:
It's very relevant to know what is in each individual tank car.

[00:19:23] Speaker 01:
But at the same time, that is the kind of information that others would want to get hold of, and they are not authorized to have it under federal law.

[00:19:32] Speaker 01:
So for that type of information, there are unauthorized people under federal law, unauthorized persons.

[00:19:39] Speaker 01:
But it also requires the disclosure of other information, which is not as sensitive.

[00:19:46] Speaker 01:
And that information is not necessarily covered under, it is not restricted by other federal law, but it might be under state law.

[00:19:55] Speaker 01:
And then there is going to be other information for which there are no unauthorized persons under federal law or state law.

[00:20:04] Speaker 01:
And for that type of information, there will be no unauthorized persons.

[00:20:08] Speaker 01:
Congress was not saying,

[00:20:10] Speaker 01:
there must be someone who doesn't get this information.

[00:20:15] Speaker 01:
Congress was saying that to the extent that there are persons who are not authorized to get the information in A, we recognize that that information varies, and to the extent that there are persons who are not authorized to get it, don't let them get it.

[00:20:32] Speaker 01:
Put in place protections so that those restrictions, for instance restrictions in federal law, are enforced.

[00:20:41] Speaker 01:
And this is in the context of a statutory provision, A in general, which is all about requiring more disclosures to the state so that the state can convey that information to first responders and local political subdivisions for emergency planning purposes.

[00:21:04] Speaker 01:
So that's the point of this provision.

[00:21:07] Speaker 02:
And it would be...

[00:21:10] Speaker 02:
go back to something, you aren't suggesting that the oar, this is in subsection six, the first oar or the second oar, is putting those, the categories following the oars, sort of off the table or completely at the

[00:21:30] Speaker 02:
uncontrolled discretion at the agency.

[00:21:33] Speaker 01:
We are not making that argument, Your Honor.

[00:21:36] Speaker 02:
What we are saying is... But I'm not sure what arguments you are making about them, because this is obviously lower level than the electronic train consist information, but where does it

[00:21:52] Speaker 02:
Well, really, Your Honor, information provided... What duty does the agency have at all with respect to that information?

[00:22:02] Speaker 01:
I'm sorry, Your Honor.

[00:22:03] Speaker 02:
What duty does the agency have with respect to the information after the first or?

[00:22:12] Speaker 01:
The advance notification?

[00:22:13] Speaker 01:
Yeah.

[00:22:13] Speaker 01:
Or, I mean, really, information provided by Class 1 railroads does encompass all the rest of it, right?

[00:22:19] Speaker 01:
So that's provided by Class 1 railroads.

[00:22:22] Speaker 01:
So if you're asking what the agency's responsibility toward the advance notification is, well, the agency made a determination, which is not challenged here, that this advance notification is not, its disclosure, we see this over the course of six years of experience, does not result in harm.

[00:22:44] Speaker 01:
And they had no, there's been no showing of harm from its disclosure.

[00:22:48] Speaker 01:
We also see that the agency has made a determination that it does not constitute, it does not violate, it is not covered by the restrictions on SSI or proprietary information.

[00:23:03] Speaker 01:
And that again, that is not contested here.

[00:23:04] Speaker 01:
They don't say that under federal law the advance notification restricts access to certain persons under federal law.

[00:23:15] Speaker 01:
They say that's irrelevant whether this information is SSI.

[00:23:19] Speaker 01:
So with that in context, there aren't a lot of tools that the agency has to protect information that is not protected by federal law.

[00:23:32] Speaker 01:
Federal law does not restrict who can get that information.

[00:23:37] Speaker 00:
But aren't you supposed to under six?

[00:23:39] Speaker 00:
That's the whole point.

[00:23:40] Speaker 00:
You're supposed to establish security and confidentiality protections for these three types of

[00:23:49] Speaker 00:
very extensive and very dangerous types of information, how many stops they make, how many times each week, where they go, the route, that you have to establish security and confidentiality protections.

[00:24:05] Speaker 00:
I don't think your opponents are saying there are any federal standards.

[00:24:10] Speaker 00:
That's their whole point.

[00:24:11] Speaker 00:
There aren't any.

[00:24:11] Speaker 00:
And this is supposed to make you adopt them.

[00:24:17] Speaker 01:
Your Honor, there are a lot of different parts of your question that your question raises a lot of different things, one of which is the advance notification does not actually include many of the things you listed.

[00:24:28] Speaker 01:
It does not include all the stops.

[00:24:30] Speaker 01:
It does not include dwell times and stations.

[00:24:32] Speaker 01:
It does not include origin or destination points.

[00:24:35] Speaker 01:
All it is, all it tells you, how many times a week does the train come through?

[00:24:40] Speaker 01:
Three times.

[00:24:41] Speaker 01:
Does it say it comes through Monday, Wednesday, and Sunday?

[00:24:43] Speaker 01:
No.

[00:24:44] Speaker 01:
Does it say what time they come through?

[00:24:46] Speaker 01:
No.

[00:24:47] Speaker 01:
It is the most aggregated and general of information.

[00:24:50] Speaker 01:
It is relevant and significant only for planning purposes.

[00:24:54] Speaker 01:
The agency has made that determination, and it isn't contested here.

[00:25:00] Speaker 00:
The other question... Am I reading 3-A-B-C-D-E-F?

[00:25:08] Speaker 00:
which is part of this advanced notification and information.

[00:25:13] Speaker 00:
Am I reading all of these things that have to be disclosed as not having to be disclosed?

[00:25:20] Speaker 00:
I mean, the reasonable estimate of the number of trains expected to travel per week through each county, updates as to the volume or frequency of trains traveling through a county, the identification of Class III flammable liquid?

[00:25:37] Speaker 01:
Yes, Your Honor.

[00:25:38] Speaker 01:
But this is not very specific information, and as I said, the agency has determined... Well, we have a different view of what specific information is.

[00:25:46] Speaker 01:
I could draw a contrast with what is required in the train consist information.

[00:25:49] Speaker 01:
That is very specific, and it would be of great interest to people who should not be getting it.

[00:25:54] Speaker 01:
That's exactly right.

[00:25:56] Speaker 01:
But this is very general and aggregated information, and it has been disclosed for six years, and there has been no show of harm.

[00:26:04] Speaker 01:
Now, to the extent that Your Honor was

[00:26:06] Speaker 01:
I believe your honor was asking about what protections did... Slow down a second.

[00:26:13] Speaker 02:
Would it be easy to establish the harm if the concern is information in the hands of competitors?

[00:26:23] Speaker 02:
And by definition, the railroads don't have information as to the thought processes of the competitors.

[00:26:33] Speaker 02:
Could it be established one way or the other that there was harm or wasn't harm?

[00:26:38] Speaker 01:
Well, Your Honor, they haven't even tried.

[00:26:39] Speaker 02:
I understand that, but you're saying that these, we know from the fact that we don't know anything, that the information caused to be disclosed had no effects.

[00:26:57] Speaker 02:
How would we ascertain effects

[00:27:01] Speaker 02:
How would we ascertain effects?

[00:27:04] Speaker 01:
If you would like me to speculate, I would say, for instance, they're saying that the competitors are watching and can easily piece together one county to another.

[00:27:13] Speaker 01:
Well, if after this information was disclosed, and it's been disclosed month after month with updates for six years, if they began to lose customers to other modes of transportation, which is their argument, then they could come in and they could say, we have anecdotal evidence of this.

[00:27:31] Speaker 01:
but no one has ever made any showing.

[00:27:34] Speaker 01:
So there is no indication of harm.

[00:27:36] Speaker 01:
And what that underscores is how unnatural a reading of the statute it is to presume that, therefore, Congress intended to put into place a complete prohibition on any of this information

[00:27:54] Speaker 01:
being disclosed to anyone who isn't specifically enumerated in any.

[00:27:58] Speaker 02:
Well, but it might have wanted the agency to exercise judgment as to what deserved protection.

[00:28:05] Speaker 01:
And that is exactly what happened here.

[00:28:07] Speaker 02:
Well, what the agency said was, well, it's not protected by state law.

[00:28:12] Speaker 02:
Well, it's not protected by pre-existing federal law.

[00:28:16] Speaker 01:
In fact, Your Honor, the agency did not say it's not protected by state law, because that is a question for each state.

[00:28:22] Speaker 01:
each state has different laws and in fact some are quite stringent about what they allow to go to be disseminated from the state emergency response commissions.

[00:28:31] Speaker 01:
That's in fact why you have A4 because A4 requires the emergency response commissions to provide that to certain, to law enforcement and to other political entities upon request because that wasn't happening.

[00:28:45] Speaker 01:
So some are quite stringent and others are more

[00:28:48] Speaker 01:
are less stringent in what they allow to be disclosed upon request.

[00:28:55] Speaker 01:
But what this statute does not do is say that even if the agency has made a determination that under federal law there are no unauthorized persons, you nonetheless have to shield this information and prevent it from going out to others

[00:29:14] Speaker 01:
regardless of whether disclosure will cause harm, regardless of how significant the information is, regardless of whether other federal law protects it.

[00:29:24] Speaker 01:
Nonetheless, you have to find somebody who does not get this information.

[00:29:29] Speaker 01:
And that is not a natural reading of the statute.

[00:29:33] Speaker 01:
We are not going to lightly assume that Congress meant to compel the agency to shield information regardless of whether it needs to be protected.

[00:29:44] Speaker 01:
And there are determinations here by the agency that this information, as it currently stands, is not information that is protected from disclosure under federal law.

[00:29:58] Speaker 01:
The agency has said it might be under state law.

[00:30:02] Speaker 01:
And that's what the regulation does.

[00:30:05] Speaker 01:
All of A is about formalizing the process, formalizing what the agency already had done.

[00:30:12] Speaker 01:
and extending the disclosure requirements.

[00:30:15] Speaker 01:
And so in A6, they're saying, put into place regulations.

[00:30:20] Speaker 01:
And so the agency has adopted a regulation that involves essentially labeling.

[00:30:26] Speaker 01:
And labeling is an important protection for information.

[00:30:31] Speaker 01:
You label something as classified or label it as top secret, and it tells people who gets to see it and who doesn't get to see it.

[00:30:37] Speaker 01:
So this says to the railroads,

[00:30:42] Speaker 01:
you should notify the states when you give the information, you can tell them that you believe this is protected under state law.

[00:30:50] Speaker 01:
And then it will help protect the information because before they, when they get a request to disclose it, at that point, they will be on notice that you have raised this.

[00:31:01] Speaker 01:
Does it mean they will do exactly what you say and share your opinion of state law?

[00:31:06] Speaker 01:
Well, maybe they will and maybe they won't.

[00:31:08] Speaker 01:
That's a different question.

[00:31:10] Speaker 01:
This isn't about giving anybody a veto power.

[00:31:12] Speaker 01:
This is about alert the state.

[00:31:15] Speaker 01:
Let them know that you have a concern and you believe this is protected by state law.

[00:31:21] Speaker 01:
Were they doing this before?

[00:31:22] Speaker 01:
Well, some of the railroads were.

[00:31:24] Speaker 01:
But all of this is about formalizing the process.

[00:31:27] Speaker 01:
So now there is a regulation.

[00:31:31] Speaker 01:
And that is a protection.

[00:31:35] Speaker 01:
I don't want to belabor the points that are in our brief.

[00:31:38] Speaker 03:
Is there an argument in the rulemaking that putting on too many protections here would make it difficult for the response centers to deal with the information in a way that they needed to?

[00:31:56] Speaker 01:
The response centers need to be able to share the information.

[00:32:00] Speaker 01:
That is, the response centers exist.

[00:32:03] Speaker 01:
Because of the Emergency Preparedness and Community Right to Know Act of 1986, this is all about preparing within the community in the event of accidents.

[00:32:14] Speaker 01:
Rail accidents were in fact the background for this.

[00:32:17] Speaker 01:
So they do have to be able to share it.

[00:32:19] Speaker 01:
They don't just keep the information, or they're not supposed to.

[00:32:22] Speaker 01:
They are supposed to share it with local emergency planning committees and first responders.

[00:32:27] Speaker 01:
And what the kind of historic backdrop tells us is that there have been a number of derailments in which

[00:32:33] Speaker 01:
Information was not sufficiently shared with first responders.

[00:32:39] Speaker 01:
So that was the impetus for the emergency program.

[00:32:43] Speaker 01:
And that is kind of carried over into the FAST Act.

[00:32:47] Speaker 01:
They say share even more widely.

[00:32:48] Speaker 01:
And we're going to have some provisions that require you to share upon request.

[00:32:54] Speaker 01:
So it is particularly odd to have the petitioner's reading of the statute

[00:33:00] Speaker 01:
in that context of a statute that is about disclosure to the state and making sure it gets down to the ground, the responders on the ground.

[00:33:12] Speaker 01:
To say that nonetheless, you should not disclose any of this information beyond the people who are enumerated.

[00:33:20] Speaker 01:
Well, every state, when I say that the conditions on the ground are going to dictate different levels of disclosure in the different states, that's because every state

[00:33:29] Speaker 01:
is different.

[00:33:30] Speaker 01:
If you're a rural state, you're going to, maybe in small towns, you're dependent upon first responders who are volunteer firefighters.

[00:33:39] Speaker 01:
And in that situation, maybe half the town is volunteer firefighters.

[00:33:41] Speaker 01:
So that's going to be a widespread disclosure.

[00:33:44] Speaker 01:
And in a more densely populated state, it will be different.

[00:33:47] Speaker 01:
And I see that my time is up.

[00:33:50] Speaker 01:
If there are any further questions for the court, we would ask the court to deny the petition.

[00:33:55] Speaker 01:
Thank you.

[00:34:01] Speaker 04:
Thank you, Your Honor.

[00:34:06] Speaker 04:
I'd like to pick up where my friend left off.

[00:34:09] Speaker 04:
The question here is not whether first responders should have access to this information.

[00:34:15] Speaker 04:
We fully agree with the government that that was both the intent of the emergency order and Congress's intent in the FAST Act.

[00:34:22] Speaker 04:
And that is spelled out in the FAST Act itself.

[00:34:24] Speaker 04:
In paragraph A4, the Emergency Response Commissions must provide the information to any political subdivision of a state or any public agency responsible for emergency response or law enforcement.

[00:34:36] Speaker 04:
Your Honor, that easily includes a small town where half the town are volunteer firefighters.

[00:34:40] Speaker 04:
And we have no quarrel with that information being disclosed there.

[00:34:44] Speaker 04:
The question here is whether this information should be disclosed to the general public.

[00:34:48] Speaker 04:
And the agency, although it takes the opposite position now, has consistently recognized that that was not the intent of this program.

[00:34:55] Speaker 04:
Shortly after it issued the emergency order that Congress has now codified in the FAST Act, the agency issued a guidance document which is discussed in the NPRM here at JA35.

[00:35:05] Speaker 04:
And it said this, this data is intended for those persons with a need to know.

[00:35:11] Speaker 04:
that is first responders at the state and local level, as well as other appropriate emergency response planners.

[00:35:17] Speaker 04:
DOT expects the Emergency Response Commissions to treat this data as confidential, providing it only to those with a need to know and with the understanding that recipients of the data will continue to treat it as confidential.

[00:35:28] Speaker 04:
Your Honor, that is all we are asking for here.

[00:35:31] Speaker 04:
Finally, to touch a point that you asked about, Judge Williams, the agency has not, in fact, exercised its discretion under this statutory language to decide that this information should or should not be disclosed to the public apart from whether it is protected as SSI under existing regulations.

[00:35:47] Speaker 04:
Throughout the rule-making materials, the agency has consistently taken the position that its hands are tied because this information is not SSI under existing rules.

[00:35:57] Speaker 04:
So even if you think that this statutory language gives the agency some discretion to decide whether this information should be protected, you cannot uphold this rule on that basis because the agency has not, in fact, exercised its judgment.

[00:36:10] Speaker 02:
Look at your hand hypothetically through a proceeding in which the agency tries to exercise its discretion.

[00:36:17] Speaker 02:
Is it the case, as counsel at the agency suggested, that the period in which substantially identical rules were in effect, nothing happened to suggest that there was any disclosure which in any way competitively presumably harmed the railroads

[00:36:40] Speaker 04:
I'm not sure that's quite right, Your Honor.

[00:36:42] Speaker 04:
So first, as you pointed out, of course, it would be extraordinarily difficult for us to know whether a competitor had pieced together this information.

[00:36:49] Speaker 03:
But you are the just Union Pacific.

[00:36:55] Speaker 03:
So you ought to know whether you've gotten any benefit from finding out your competitor's information.

[00:37:00] Speaker 04:
Yes, Your Honor.

[00:37:01] Speaker 04:
I am not aware of any benefit that UP has derived from its competitor's information in that regard.

[00:37:05] Speaker 04:
The other point I will make on this topic, Your Honor,

[00:37:07] Speaker 04:
is that although my friend referred a few times to the six-year passage where these rules have been in place, I don't take the agency to have evaluated this question throughout that time or at the end of that time.

[00:37:20] Speaker 04:
It determined in the Paperwork Reduction Act notice in 2014, which is in the JA at page 18, that the railroads had not then shown

[00:37:30] Speaker 04:
any specific instances of harm, not future harm or potential harm, but actual harm that had already occurred.

[00:37:36] Speaker 04:
The agency said, well, you haven't shown that.

[00:37:38] Speaker 04:
And then every other time throughout the rulemaking process, it just pointed back at that determination and said, well, you haven't shown any harm.

[00:37:45] Speaker 04:
And they started referring to it as a failure to show prospective harm, but that's never what it was, and that's not what the agency said in the first place.

[00:37:51] Speaker 04:
So I don't think the agency actually has made that determination in any event.

[00:37:56] Speaker 04:
Unless there are any further questions, we'd ask you to vacate and remand.

[00:37:59] Speaker 04:
Thank you.