[00:00:00] Speaker 04:
Base number 20-1117, Transportation Division of the International Association of Sheet Metal, Air, Rail, and Transportation Workers at AL, petitioners, versus Federal Railroad Administration and United States Department of Transportation.

[00:00:17] Speaker 04:
Mr. McKinley for the petitioner, Ms.

[00:00:19] Speaker 04:
Mundell for the respondents.

[00:00:22] Speaker 05:
Good morning, Mr McKinley, you may proceed.

[00:00:24] Speaker 00:
Good morning and may it please the court.

[00:00:26] Speaker 00:
Sean McKinley I'm representing the petitioners in this case, International Association of sheet metal air rail transportation workers Brotherhood of locomotive engineers and treatment and the Academy of Rail Labor attorneys.

[00:00:40] Speaker 00:
This is a case where this.

[00:00:42] Speaker 00:
The petitioners are seeking a review of a federal agency rulemaking.

[00:00:47] Speaker 00:
In this case, the agency in question is the Federal Railroad Administration, and the rulemaking had to deal with so-called risk reduction programs, which are mandated by the Rail Safety Improvement Act of 2008.

[00:01:01] Speaker 00:
And now when the FRA is, the FRA has broad authority granted to it by Congress to oversee safety concerns in the United States rail transportation system that extends to rule makings.

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The FRA is the body that's primarily responsible for rule makings in the railroad industry in the United States.

[00:01:22] Speaker 00:
Now this broad authority though is not limitless.

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The FRA is limited by

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you know, the mandates from Congress as expressed through various statutes.

[00:01:33] Speaker 00:
In this case, the limitations on the FRA's authority is limited by the Rail Safety Improvement Act, as mentioned, and also the Administrative Procedure Act, as this is a formal notice and comment rulemaking as that is defined under the APA.

[00:01:48] Speaker 02:
Mr. McKinley, let me start, if I may, with a couple of questions about your standing

[00:01:57] Speaker 02:
and maybe about remedies and there may be some overlap.

[00:02:01] Speaker 02:
One of your arguments is that we should vacate the rule because it was tardy by about 11 years or four years, it was very late.

[00:02:12] Speaker 02:
And I would take it to be that your injury for Article III standing purposes is, well, there was this gap in time when the rule should have been in effect, when a rule should have been in effect and it wasn't in effect for that gap of time.

[00:02:26] Speaker 02:
Um, and we were injured because I guess a rule would have been better protecting you, um, in terms of safety, but in terms of redress ability, you know, we don't, we can't go back in time.

[00:02:38] Speaker 02:
And so I'm not sure how vacating the rule or even just remanding it without vacating it with regard to the tardiness would do anything to redress the injury you suffered.

[00:02:56] Speaker 02:
of going those 11 years or four years without a rule in place.

[00:03:01] Speaker 02:
So can you help me with that?

[00:03:02] Speaker 02:
How is this with regard to the timeliness claim?

[00:03:06] Speaker 02:
How is this a redressable injury?

[00:03:08] Speaker 00:
Well, thank you, Your Honor.

[00:03:10] Speaker 00:
I guess to answer that I would say that the Congress and the FRA's own regulations, as you kind of intimated, require that the FRA complete rulemaking is within 12 months from the date that the NPRM is published in the Federal Register.

[00:03:26] Speaker 00:
Um, and as far as just to get us directly to your question, uh, the, the, the first NPR, the NPRM was issued in February of 2015 when the final rule was promulgated in February of 2020.

[00:03:39] Speaker 00:
So we're talking about a five year gap there.

[00:03:42] Speaker 02:
Um, it was supposed to be done in a year.

[00:03:44] Speaker 02:
So let's say that there was a four year gap where you were injured because a rule was not in place.

[00:03:48] Speaker 02:
How is that injury redressable by this court?

[00:03:51] Speaker 00:
Well, I would define the injury a little bit differently, Your Honor.

[00:03:55] Speaker 00:
I would define it as the process for the rulemaking is 12 months, as we said.

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During that process, the FRA is required to solicit and receive public comments.

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It's an active process with the public and stakeholders in the industry.

[00:04:11] Speaker 00:
In this case, the FRA had accepted comments in April of 2015 through essentially October through a few different rounds of comments.

[00:04:21] Speaker 00:
and then did nothing for four years.

[00:04:24] Speaker 01:
You file an action seeking to compel the agency to complete what they're supposed to do.

[00:04:32] Speaker 01:
I mean, if we followed your approach, do you know how many things we'd vacate?

[00:04:37] Speaker 01:
Agencies are rarely on time.

[00:04:40] Speaker 01:
But to add to what my colleague is saying, it doesn't make sense intuitively.

[00:04:46] Speaker 01:
How is that giving relief

[00:04:48] Speaker 01:
What do you want us to do?

[00:04:49] Speaker 01:
Just vacate and say, go away?

[00:04:51] Speaker 01:
You can't do anything now?

[00:04:53] Speaker 01:
Do it promptly or what?

[00:04:56] Speaker 01:
What are you saying?

[00:04:57] Speaker 00:
Well, I would say vacate and if the FRH or the NPRM can be reissued and they can complete the rulemaking within a year.

[00:05:04] Speaker 00:
It's still late.

[00:05:06] Speaker 00:
I'm sorry, Your Honor.

[00:05:07] Speaker 00:
It's still late.

[00:05:09] Speaker 00:
Well, this particular final rule is late, but if the FRA presumably restarted the process, they would have 12 months then to complete the rulemaking under 49 CFR 211.

[00:05:22] Speaker 02:
You commented, right?

[00:05:23] Speaker 02:
During the notice and comment period, some of these petitioners did file comments.

[00:05:30] Speaker 02:
Is that right?

[00:05:31] Speaker 02:
Yes.

[00:05:32] Speaker 02:
And so is there

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Is there something that happened as a result of the delay from a procedural perspective from a, you know, not the due process applies, but from a customer procedure?

[00:05:44] Speaker 02:
Is there some, is there something that happened procedurally that went wrong that you think would go right if we vacated and remanded this and did it all over again?

[00:05:53] Speaker 00:
Well, I think as I was getting to before, I think the issue is that the FRA was acting on information that was four years after it was submitted.

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This is an industry that changes from year to year, technology changes, safety concerns change year to year.

[00:06:08] Speaker 00:
The FRA's final rule here is based on stale information at this point, stale comments from five years ago.

[00:06:15] Speaker 02:
And I think- Can you be specific about that in a way that's specific enough to give me something to go on?

[00:06:24] Speaker 00:
Well, certainly, I guess, for example, I would say part of the Real Safety Improvement Act was the implementation of positive train control technology.

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It's essentially a technology that is an additional safeguard on trains that permits if a train misses, a conductor engineer misses a signal, the train can enter into a stop, like an emergency stop or something like that.

[00:06:48] Speaker 02:
This technology- There was information that was not available at the time that's available now

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But if the rule had been promulgated earlier, you still wouldn't have known, you still wouldn't have been promulgated based on the new rule.

[00:07:04] Speaker 02:
Another way of saying is, if the information between 2015 and 2016 is now stale,

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the rule had it been promulgated in 2016 was still going to be promulgated based on that stale information, even if it had been promulgated on time.

[00:07:20] Speaker 02:
So I'm not sure I'm with you there.

[00:07:22] Speaker 02:
You can respond to that.

[00:07:22] Speaker 02:
And if you would also respond to this, you put a heavy emphasis on vacating as opposed to just remanding, not just for this claim, but for the fatigue management claim as well.

[00:07:35] Speaker 02:
Is your position that you want us to either vacate

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or do nothing?

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Is your position that a remand is not acceptable to you?

[00:07:46] Speaker 00:
I wouldn't say not acceptable.

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I would say the law requires under the APA section 706 of the APA just requires that the agency action be set aside.

[00:07:55] Speaker 02:
But this court has precedents about when to vacate and remand versus when to just remand without vacating and we look at how disruptive would it be and we look at how

[00:08:05] Speaker 02:
how bad, how wrong, how easy to fix it would be the original rule that has some problem with it.

[00:08:11] Speaker 02:
I mean, under that test, are you saying we should either vacate or just deny your petition?

[00:08:20] Speaker 00:
Well, I believe that vacate is the remedy here because

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Nothing prevents, to restart, nothing prevents the FRA from restarting the rulemaking process with information that is fresh and available.

[00:08:36] Speaker 02:
And I think based on the circumstances that exist, this is a rule that is- Let me, I understand the argument, but I just want to know if you're also making alternative arguments, and then I'll get out of the way here.

[00:08:49] Speaker 02:
Assume that we conclude that vacating is not the appropriate remedy.

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and assume that we are inclined to sua sponte, even though you didn't ask for this, remand, maybe on the fatigue management question, without vacating.

[00:09:05] Speaker 02:
Is it your position that we should not sua sponte remand, that instead of that, we should just deny the petition?

[00:09:14] Speaker 00:
Well, if that were the case, we would welcome the sua sponte action to remand

[00:09:20] Speaker 00:
for further rulemaking if that's what the court decides is appropriate.

[00:09:24] Speaker 02:
And I didn't mean to monopolize the questions here, so I'll stop.

[00:09:30] Speaker 05:
How do you read, do you read the statute?

[00:09:34] Speaker 05:
I mean, moving to the fatigue management plan, do you think it would be lawful for the FRA to accept a risk management program that did not include a fatigue management plan?

[00:09:49] Speaker 00:
Well, I think that goes to kind of the heart of the issue of what we argue with the fatigue management plan is that Congress mandated that fatigue management plans are required components of risk reduction plans.

[00:10:01] Speaker 00:
And I would argue and I put to the court here that a risk reduction plan that does not have a fatigue management plan doesn't comply with the mandate of Congress.

[00:10:11] Speaker 00:
Hopefully that answers your question.

[00:10:13] Speaker 05:
Well, but what if that plan, I mean, is there anything in the statute that requires all of those components to be approved by the agency at the same time?

[00:10:22] Speaker 00:
Right.

[00:10:23] Speaker 00:
Well, I would say that there's not anything that requires it to explicitly to be all approved at the same time.

[00:10:32] Speaker 00:
But I would point to the subsection in the RSIA where the fatigue management plans are included.

[00:10:37] Speaker 00:
It's a required component.

[00:10:39] Speaker 00:
So then the question becomes, I believe,

[00:10:41] Speaker 00:
at what point then are fatigue management plans to be then included in risk reduction?

[00:10:46] Speaker 00:
How long are we to go with risk reduction plans that do not have fatigue management?

[00:10:50] Speaker 05:
So that claim, though, isn't yet ripe, is it?

[00:10:54] Speaker 05:
So if, for instance, the agency begins accepting these plans, or say we call them partial risk management plans because they don't have the fatigue management component, wouldn't your claim then only become ripe at the point at which

[00:11:11] Speaker 05:
the agency is regularly accepting these risk programs without a fatigue management plan.

[00:11:21] Speaker 00:
Well, your honor, I would say that at this point, the development of risk reduction plans is now currently ongoing.

[00:11:28] Speaker 00:
This is the process there to be submitted by class one carriers August 21st of this year.

[00:11:34] Speaker 00:
So that development is currently ongoing.

[00:11:37] Speaker 00:
If you're suggesting that we would have to wait until plans are submitted for review by the FRA and the FRA then approves of these plans,

[00:11:46] Speaker 00:
in order for the action to be right, but I don't know if I necessarily agree with that because I think that the final rule is clear and the FRA has stated and it's intent clearly that they're moving forward with this without the fatigue management plan component at this time.

[00:12:01] Speaker 00:
and that is how the process is going to move forward.

[00:12:04] Speaker 00:
And the FRA has indicated that they're doing a separate rulemaking with fatigue management plans.

[00:12:09] Speaker 00:
They issued the NPRM for that, I believe on December 9th of 2020, but based on the timeliness of how long it took the FRA to issue a final rule with the risk reduction plan, I think we could be looking at a period of years without fatigue management plans.

[00:12:26] Speaker 01:
How much time between the

[00:12:29] Speaker 01:
end of the comment period in the final rule?

[00:12:32] Speaker 00:
Uh, the, the end of the comment period, uh, the FRA had reopened it twice.

[00:12:37] Speaker 00:
Uh, I believe the comment period ended, uh, I hesitate to say a specific date, but it was mid October of 2015.

[00:12:43] Speaker 00:
And then the final rule was issued on February 10th of 2020.

[00:12:48] Speaker 00:
So that's more than four years, four years and two months or so.

[00:12:58] Speaker 00:
Okay.

[00:12:59] Speaker 00:
Okay.

[00:13:00] Speaker 00:
And I guess we discussed why, I guess I'm into my rebuttal time, so I guess I'll reserve what's left.

[00:13:09] Speaker 05:
Okay.

[00:13:09] Speaker 05:
Do my colleagues have any further questions?

[00:13:11] Speaker 00:
Not me.

[00:13:12] Speaker 00:
Okay.

[00:13:13] Speaker 05:
Thank you.

[00:13:15] Speaker 05:
Ms.

[00:13:15] Speaker 05:
Mundell?

[00:13:17] Speaker 03:
Good morning, Your Honors.

[00:13:18] Speaker 03:
May it please the Court, Amanda Mundell on behalf of the Respondent Agencies.

[00:13:22] Speaker 03:
This petition should be denied.

[00:13:24] Speaker 03:
And I'd like to start by responding to two of the points that petitioner has raised today.

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The first is with respect to the remedy that they have requested.

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As the court's questions suggests, vacater here doesn't make sense as a practical matter.

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And it also is a remedy that no court has ever ordered with respect to delayed agency action, at least as far as when a statute doesn't.

[00:13:46] Speaker 03:
have a penalty for noncompliance, which is exactly the case here.

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And I think as Judge Edward points out, if it were really up to the courts to vacate a rule every time an agency misses a statutory deadline, they would be vacater constantly.

[00:14:00] Speaker 03:
And it would stymie and bottleneck agency operations even further.

[00:14:04] Speaker 03:
And I think the point is underscored by the fact that, you know, petitioners have suggested an argument today that, you know, part of the reason why maybe Vacketer makes sense is because the rule might have been relying on stale information, but the only example that they've now offered is a part of the rule that they haven't even challenged, which is about positive train control.

[00:14:23] Speaker 03:
So even that doesn't serve as a basis for Vacketer here.

[00:14:26] Speaker 03:
I think at the end of the day, you know, this is a rule that unfortunately took several years, but it wasn't the result of the agency thumbing its nose at Congress or flouting the congressional, you know, requirements to attempt to make this rule in a timely fashion.

[00:14:40] Speaker 03:
This is a rule that is massive.

[00:14:43] Speaker 03:
It involves several components, meetings with stakeholders.

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And the agency wisely acknowledged that reopening the comment period would have been necessary, that several public hearings would have been required to push this rule out.

[00:14:54] Speaker 03:
And ultimately, we do have a rule that I think petitioners agree needs to exist in some form.

[00:14:59] Speaker 03:
So vacating it, bringing us back to the status quo where there weren't extensive regulations in this area.

[00:15:06] Speaker 02:
Let me ask you about the performance-based standards, which your opposing counsel didn't have a chance to touch on.

[00:15:17] Speaker 02:
There's nothing wrong with performance-based standards, at least in terms of what the statute allows, what APA would allow.

[00:15:24] Speaker 02:
But I had a hard time finding out what the standard is.

[00:15:29] Speaker 02:
in this performance-based standard.

[00:15:31] Speaker 02:
And so I have some concern that the standard is so nonspecific here that it's a standardless standard.

[00:15:39] Speaker 02:
So can you help me with that a little bit?

[00:15:43] Speaker 02:
And maybe as you do so, I'd be curious to know what precedent you would recommend I read where a court finds not arbitrary and capricious

[00:15:55] Speaker 02:
a standard that is as nonspecific as your standard here?

[00:16:01] Speaker 03:
Well, respectfully, Your Honor, we don't think there's a nonspecific standard.

[00:16:04] Speaker 03:
I mean, Congress's mandate here is quite broad to reduce safety hazards and safety risks on train operations.

[00:16:11] Speaker 03:
And so to accomplish that objective, the performance-based aspect of this rule is first requiring railroads

[00:16:17] Speaker 03:
to identify those safety objectives on their systems.

[00:16:20] Speaker 03:
So perhaps some railroads have issues with derailment.

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That would be an objective that they would want to achieve under this rule would be reducing derailment.

[00:16:29] Speaker 03:
Other railroads might deal with more environmental-based hazards.

[00:16:32] Speaker 03:
Maybe other railroads deal with electronic or technological issues.

[00:16:36] Speaker 03:
So the rule puts it at first, you know,

[00:16:38] Speaker 03:
at the first step in the railroad's corner to identify those objectives and then requires them to identify a process or system of steps that can address those objectives and mitigate those risks.

[00:16:51] Speaker 02:
And in terms of those objectives, how would anyone ever know if those objectives are enough?

[00:16:59] Speaker 02:
So let's say that a train has 500

[00:17:06] Speaker 02:
of a specific type of infraction per year on average over the past decade.

[00:17:10] Speaker 02:
And they set a goal of improving that so that they now only have 499 of those infractions per year going forward.

[00:17:20] Speaker 02:
I mean, would that satisfy the performance-based standard?

[00:17:26] Speaker 02:
And if it wouldn't, why wouldn't it?

[00:17:29] Speaker 03:
That's a good question, Your Honor, and I think there's two responses to that.

[00:17:32] Speaker 03:
I think the first, we have to take a step back and realize that this is an iterative process that isn't just fixed in stone.

[00:17:39] Speaker 03:
So the railroads are not just setting objectives, attempting to meet those objectives.

[00:17:43] Speaker 03:
and then never addressing additional safety risks to begin with.

[00:17:46] Speaker 03:
It might well be that when there are 500 infractions, reducing that down by one is actually a significant improvement.

[00:17:54] Speaker 03:
But this rule wouldn't just require them to stop there.

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Railroads are constantly required to address additional risks on their system.

[00:18:00] Speaker 03:
And the second aspect of my response to your question, Your Honor, is that we know that this would be a good step to take because this is a collaborative process.

[00:18:08] Speaker 03:
The rule envisions collaboration between FRA,

[00:18:11] Speaker 03:
railroads and other interested stakeholders, including petitioners here, including labor unions, and labor unions have the opportunity to raise these additional concerns, both to the railroads and to FRA.

[00:18:23] Speaker 03:
So the FRA is aware of what risks exist on these systems and how best to address them.

[00:18:28] Speaker 03:
So I don't think there's an oversight problem there.

[00:18:31] Speaker 02:
What's the difference between non-binding guidance from the agency?

[00:18:36] Speaker 02:
and your standard, which is reportedly a legally binding standard?

[00:18:44] Speaker 03:
Well, Your Honor, this performance-based standard, this type of rule, requires these railroads to put together a plan that have objectives and certain processes in there that the agency is going to approve.

[00:18:56] Speaker 03:
And it requires periodic audits.

[00:18:58] Speaker 03:
So it's not as if the agency sort of gives them a standardless guidance.

[00:19:01] Speaker 03:
and railroads are off on their own to implement these programs as they see fit.

[00:19:05] Speaker 03:
Railroads have to do their own internal audits and FRA has to conduct periodic audits under the rule.

[00:19:10] Speaker 03:
And if there is no compliance with the program or if the railroad is consistently falling short of its deadlines or an implementation schedule, the statute itself authorizes the agency to seek civil penalties for that.

[00:19:21] Speaker 02:
So I think there's, but I guess when would they seek the civil penalties?

[00:19:24] Speaker 02:
Is it a bad faith standard?

[00:19:26] Speaker 02:
These railroads are supposed to do these internal audits and figure out what's not terrific.

[00:19:30] Speaker 02:
And then they make some reforms and they set some goals.

[00:19:33] Speaker 02:
And if they are doing that in good faith, then they don't get penalized by the agency.

[00:19:39] Speaker 02:
And if they're doing that in bad faith, they do get penalized.

[00:19:41] Speaker 02:
But is it a good faith standard?

[00:19:43] Speaker 03:
Your honor, I don't think the standard is a good-face standard, but candidly, I think this is a case-by-case determination if a railroad consistently is falling short of their obligations under the plan.

[00:19:53] Speaker 03:
But what I can tell you is that, again, this is a collaborative process.

[00:19:57] Speaker 03:
The agency is consistently reviewing these plans.

[00:19:59] Speaker 03:
The railroads are consistently updating them and implementing additional measures to address new hazards or new risks.

[00:20:06] Speaker 03:
And the employees themselves have the opportunity to flag any areas of concern for the agency in the course of the review process.

[00:20:12] Speaker ?:
OK.

[00:20:13] Speaker 05:
If I can ask you, so if we were to accept that the agency can promulgate the fatigue management plan separate from its risk reduction program more generally, can the agency accept the risk reduction programs without a fatigue management plan under the statute?

[00:20:36] Speaker 03:
Absolutely, Your Honor.

[00:20:37] Speaker 03:
And this was the second point that I wanted to raise in response to.

[00:20:39] Speaker 03:
Even though there are required components of such a program?

[00:20:42] Speaker 03:
Absolutely.

[00:20:43] Speaker 03:
And I think, Judge Rao, as your question to petitioners suggested earlier, there's nothing in the statute that prohibits the agency from implementing Congress's mandate in a series of steps.

[00:20:53] Speaker 03:
to first require risk reduction programs that have certain components and then to require an additional component.

[00:20:59] Speaker 03:
And there's nothing in the statute that prohibits or requires even railroads to implement all of these various components at the exact same time.

[00:21:08] Speaker 03:
And here it's well within the agency's discretion.

[00:21:10] Speaker 03:
to first promulgate a rule addressing components one, two, and three, and to add an additional rule addressing that last component.

[00:21:17] Speaker 03:
And just for what it's worth, these fatigue management plan requirements, once there is a final rule on fatigue management, will automatically get incorporated into a railroad's risk reduction program.

[00:21:29] Speaker 03:
So it's not as if railroads are ignoring fatigue management issues altogether.

[00:21:34] Speaker 03:
It's just that this part will come later.

[00:21:35] Speaker 05:
It's so it's only a matter of time.

[00:21:37] Speaker 05:
So do you agree that if say in in some number of years the agency did not have a fatigue management plan and these programs were readily, you know, regularly getting approved without fatigue management plans that would at some point be contrary to law or ultra various or

[00:21:55] Speaker 03:
Well, I think petitioners might try to bring an action to compel agency action, which unlawfully withheld or unreasonably delayed.

[00:22:03] Speaker 03:
But here, of course, we have a rule in the process.

[00:22:05] Speaker 03:
The comment period has closed as of about a week and a half ago.

[00:22:08] Speaker 03:
And there's really no reason to expect the agency not to work diligently to issue that rule.

[00:22:13] Speaker 03:
I think it's worth pointing out that fatigue management is a much more discrete area than risk reduction programs, which involved a number of different concerns and moving components.

[00:22:22] Speaker 03:
That's also an area where the agency has extensive experience.

[00:22:25] Speaker 03:
So, you know, I think it would be difficult to expect a rule to issue, you know, right away within the next few months, because, of course, you know, review processes take time.

[00:22:33] Speaker 03:
But I would be surprised if a rule took an extensive amount of time in light of the fact that this is just the last piece of the puzzle here.

[00:22:44] Speaker 03:
That's helpful.

[00:22:44] Speaker 03:
Your Honor, if there are additional questions, I'd be welcome to answer them.

[00:22:49] Speaker 03:
My colleagues have any further questions now?

[00:22:51] Speaker 03:
Okay.

[00:22:51] Speaker 05:
Thank you, Your Honors.

[00:22:53] Speaker 05:
We just asked that the petition be denied.

[00:22:55] Speaker 05:
Thank you, Ms.

[00:22:56] Speaker 05:
Mundell.

[00:22:58] Speaker 05:
Mr. McKinley will give you two minutes.

[00:23:04] Speaker 02:
You're muted.

[00:23:04] Speaker 02:
I think you're on mute.

[00:23:07] Speaker 00:
My apologies.

[00:23:09] Speaker 00:
Just to address briefly a few things that were said.

[00:23:12] Speaker 00:
With regard to fatigue management plans, the respondents suggest that they're allowed to address this matter in a series of steps, partial compliance, one step at a time.

[00:23:24] Speaker 00:
However,

[00:23:25] Speaker 00:
it's been defined.

[00:23:26] Speaker 00:
And I would like to point out, though, that there is a requirement, though, that the FRA is required to explain why the problem should be treated this way.

[00:23:36] Speaker 00:
The FRA has not put forth any explanation for why there needs to be a separate rulemaking for fatigue management plans.

[00:23:42] Speaker 00:
And in fact, I think the record

[00:23:43] Speaker 00:
really cuts against their argument that the FRA submitted the fatigue management plan issue to the RSAC working group, it's called, in 2012, which then passed on its recommendations then, and then the FRA has not taken any action since until December 9th of 2020.

[00:24:05] Speaker 00:
And then just in the final rule, they simply say it should be addressed in a separate rulemaking.

[00:24:10] Speaker 00:
Well, why couldn't they be addressed at the same time?

[00:24:13] Speaker 00:
And these are just speculative questions because we don't know the answer because the FRA hasn't provided any sort of explanation for that.

[00:24:18] Speaker 00:
And to my last point, I guess, with Judge Walker, you raised a good point with it's a nonspecific standard and the FRA made it clear that it was particularly concerned with the financial burden

[00:24:31] Speaker 00:
on smaller railroads versus larger railroads when it comes to developing and implementing these plans.

[00:24:37] Speaker 00:
But I think the final result, Judge Walker, as you said, is that this is a very nonspecific standard.

[00:24:43] Speaker 00:
The FRA indicates in the final rule that it has the ability to scale down the rule 60%.

[00:24:49] Speaker 00:
They don't explain how the rule can be scaled down.

[00:24:52] Speaker 00:
When you look at subpart B of the final rule, there is no explanation in any way of how the rule can be scaled down.

[00:24:58] Speaker 00:
So I think what we have is a

[00:24:59] Speaker 00:
a kind of ill-defined minimum standard that applies across all railroads.

[00:25:05] Speaker 01:
Don't the standards have to be approved by the FRA?

[00:25:08] Speaker 00:
Well, yes, Judge.

[00:25:10] Speaker 00:
They do have to be approved by the FRA, but I would also point out that the final rule doesn't contain any sort of real process for how these plans are to be approved.

[00:25:19] Speaker 00:
The FRA is fairly silent on that.

[00:25:21] Speaker 00:
It seems to be, I think, as a respondent stated, a sort of case by case basis.

[00:25:27] Speaker 00:
And that's not really a useful rule here.

[00:25:32] Speaker 00:
This is, as I think Judge Walker said, it's more guidance than anything else.

[00:25:36] Speaker 00:
And I don't think

[00:25:38] Speaker 00:
In this case, railroads necessarily know if they're going to comply.

[00:25:40] Speaker 00:
They submit something to the FRA if it'll be approved and how exactly that process works.

[00:25:46] Speaker 00:
It's not defined in the final rule.

[00:25:49] Speaker 00:
And I'm into my time.

[00:25:50] Speaker 00:
If there's any other questions, I'd answer them.

[00:25:52] Speaker 00:
If not, I'll just ask that the rule be vacated.

[00:25:58] Speaker 05:
All right.

[00:25:58] Speaker 05:
Thank you, Mr. McKinley.

[00:26:00] Speaker 05:
This case is submitted.