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

[00:00:02] Speaker 00:
Face number 22-5295 Center for Biological Diversity at Alice versus National Marine Fisheries survey.

[00:00:10] Speaker 00:
Gina Raimondo in our official capacity at Secretary of Commerce.

[00:00:14] Speaker 00:
Mr Eaton, Mr. Mcmurdo for the Middle East.

[00:00:21] Speaker 00:
All right, Mr Eaton, good morning.

[00:00:23] Speaker 03:
Good morning and may it please the court.

[00:00:24] Speaker 03:
My name is Chris Eaton for Appellant Conservation Groups.

[00:00:27] Speaker 03:
I'd like to reserve two minutes for

[00:00:29] Speaker 03:
When agencies regulate, they need to share their work, and they need to give the public a chance to provide meaningful input.

[00:00:35] Speaker 03:
And we're here today because the fisheries service didn't do that when it came up with a new arbitrary standard for turtle excluder device requirements.

[00:00:42] Speaker 03:
That arbitrary standard does just a mere fraction of what the service has said is required to address the greatest human cause impediment to the recovery of sea turtles, particularly the most critically endangered turtle, the cancer.

[00:00:55] Speaker 03:
I'd like to begin the notice and comment violation because all of the claims in this case present problems.

[00:01:01] Speaker 00:
Can I ask you to either get closer to the microphone?

[00:01:04] Speaker 03:
My apologies.

[00:01:05] Speaker 03:
Thank you.

[00:01:06] Speaker 03:
I'd like to begin with the notice and comment violation because all of the claims in this case concern problems that might not have been an issue if only the service had given the public a chance to weigh in on the 40 foot standard.

[00:01:18] Speaker 03:
And I'll discuss the arbitrary justification issue second.

[00:01:21] Speaker 03:
So if an agency is going to announce a new standard in a final rule that defines which entities are going to be subject to a regulation, it has to have given some notice that a change to that ultimate standard was possible.

[00:01:33] Speaker 03:
Otherwise, interested parties can't know that they're supposed to comment on that subject or the issues that it raises.

[00:01:39] Speaker 03:
The proposed rule here gave no indication that the service might come up with a new regulatory standard in the final rule.

[00:01:45] Speaker 03:
And that new standard raises a bunch of new issues that weren't in the mix for the approaches that it mentioned in the proposed rule.

[00:01:53] Speaker 03:
So first, it results in much higher levels of sea turtle mortality, double the level of sea turtle mortality of the least protective regulatory option that it said it was considering.

[00:02:04] Speaker 03:
And that presents much different implications for the recovery and conservation of sea turtles.

[00:02:09] Speaker 03:
And commenters couldn't have known that they were supposed to comment on what those implications might be

[00:02:14] Speaker 03:
because the service never indicated that it might adopt a regulatory standard with such a higher level of mortality.

[00:02:22] Speaker 03:
It actually indicated the opposite.

[00:02:24] Speaker 03:
The service said in the proposed rule at J-259 that it was rejecting the much narrower option for exempting skimmer trolls under 26 feet because that didn't provide enough protection for sea turtles, that it was too broad of an exemption.

[00:02:39] Speaker 03:
So how could commenters read that and then anticipate that the service would ultimately come up with a much broader exemption that provides much less protection for sea turtles?

[00:02:48] Speaker 03:
And that's the sort of flip-flop.

[00:02:49] Speaker 04:
Because protection wasn't the only parameter

[00:02:52] Speaker 04:
that the agency had to consider.

[00:02:54] Speaker 04:
They had to consider other things, like economic impacts on fisheries.

[00:02:58] Speaker 02:
Correct.

[00:02:59] Speaker 02:
And what is the authority for that, that they had to consider economic impacts?

[00:03:05] Speaker 03:
We don't disagree that economic impacts are relevant.

[00:03:08] Speaker 03:
Our point here is that they were not an independent basis for the rule.

[00:03:13] Speaker 03:
They balanced economics and conservation.

[00:03:19] Speaker 00:
protecting endangered species economics?

[00:03:23] Speaker 03:
I think that question's not necessarily presented here.

[00:03:26] Speaker 03:
I think that would be our client's position.

[00:03:28] Speaker 03:
The service didn't say in the rule that it trumps.

[00:03:31] Speaker 03:
The service doesn't say in its brief that it trumps.

[00:03:34] Speaker 03:
The service said it relied on multiple factors to reach this decision.

[00:03:38] Speaker 04:
And I think- So I just want to understand.

[00:03:41] Speaker 04:
You're challenging the fact that they adopted a rule

[00:03:46] Speaker 04:
with a 40 foot boat limit instead of a 26 foot boat limit.

[00:03:50] Speaker 04:
Because 26 was the only number that they included in their proposed rule.

[00:03:55] Speaker 04:
And I think you would agree, would you not, that they didn't have to put the number 40 in the rule in order to end up promulgating a rule that had that number in it.

[00:04:06] Speaker 03:
Yeah, we would agree.

[00:04:06] Speaker 03:
I think what they had to say is that they might do a length other than 26.

[00:04:12] Speaker 04:
And if they say that, JA256, they said they might phase in the new TED requirements based on vessel size.

[00:04:20] Speaker 04:
So the largest vessels would be the first vessels required to install.

[00:04:23] Speaker 04:
Why doesn't that put people on notice that the vessel could be greater than 26, perhaps 40?

[00:04:29] Speaker 03:
So the phased-in approach, the service explains that the reason for the phased-in approach is because it's going to take a while to produce

[00:04:36] Speaker 03:
And so the phased-in approach was how to prioritize which vessels get TEDs first.

[00:04:41] Speaker 03:
And it explains that in that approach that the vessels that are not required to have TEDs right off the bat would be required to have TEDs under the rule.

[00:04:51] Speaker 03:
And it talks about the issue with the phased-in approaches.

[00:04:55] Speaker 04:
I'm just wondering why that doesn't give you notice that 40 is an option.

[00:04:58] Speaker 04:
Because in that proposed rule, it said 26, but didn't say why 26.

[00:05:03] Speaker 04:
It never said because of safety, because of economics, because of anything.

[00:05:07] Speaker 04:
It just said, here's 26, maybe trawlers of 26 feet in length.

[00:05:13] Speaker 04:
And then there is discussion about other boat lengths.

[00:05:17] Speaker 04:
I don't know what else the agency's supposed to do to put you on notice that it could be 40, short of having to put in 40, which you agree they don't have to do.

[00:05:25] Speaker 03:
So I want to add two points on that.

[00:05:27] Speaker 03:
So first, the phased in approach, saying that this rule will require tabs on all vessels and they'll have to have them at different times is very different issue than saying we are going to only require them on some subset and the other subset will never.

[00:05:41] Speaker 04:
How is that different?

[00:05:42] Speaker 04:
Isn't that a phased in approach?

[00:05:43] Speaker 04:
Let's start with the 40 length boats and then later we might make it 26.

[00:05:48] Speaker 03:
The facing approach would the way that that is presented is under this rule, this rule would require them on on all vessels and the only difference is the timing regulation would say all that's not exactly because but you also had noticed that it could just be trawlers in a different place.

[00:06:05] Speaker 04:
But this if we're just talking about boat length, you're on notice about boat boat length.

[00:06:10] Speaker 04:
I think that it could change.

[00:06:11] Speaker 04:
It could be something greater than 26, because they're going to phase us in.

[00:06:14] Speaker 03:
I think it would be that they would still require all vessels to have TEDs.

[00:06:21] Speaker 03:
And the only difference would be the... So let's back up.

[00:06:23] Speaker 04:
There were seven different alternatives.

[00:06:26] Speaker 04:
Some of them said all, some of them some subset of all.

[00:06:29] Speaker 04:
Two of them said 26 feet in length.

[00:06:32] Speaker 04:
And I thought that your claim here is that we had no notice it could be 40 feet in length for the boat men.

[00:06:38] Speaker 04:
And I'm just asking, why didn't you have notice of that based on this provision?

[00:06:42] Speaker 03:
Based on the phased in?

[00:06:44] Speaker 03:
Yeah.

[00:06:45] Speaker 03:
Because the phased in explains that the regulation would cover all vessels.

[00:06:53] Speaker 04:
And the only difference- You have notice about all versus subsets.

[00:06:56] Speaker 04:
You don't contest that.

[00:06:59] Speaker 04:
You had notice that it didn't have to be all vessels.

[00:07:01] Speaker 04:
It could be a subset.

[00:07:02] Speaker 04:
Do you agree with that?

[00:07:03] Speaker 03:
Yes.

[00:07:03] Speaker 03:
And so the other point is- So let's focus on both, right?

[00:07:06] Speaker 03:
Yeah.

[00:07:07] Speaker 03:
So the other point I want to make there is that the service explained that the reason that it had that 26-foot option is because it considers skimmer trolls under 26 feet to be different from all other skimmer trolls.

[00:07:19] Speaker 04:
Because they have... Where is that in the proposal?

[00:07:22] Speaker 03:
They explain that in the draft EIS.

[00:07:25] Speaker 03:
And I don't have the site handy, and I can find that.

[00:07:31] Speaker 03:
Okay, yeah, so.

[00:07:35] Speaker 03:
And and they explain in the final rule as well that they consider vessels under 26 feet to have unique data limitations unique operational constraints that vessels larger than 26 feet don't and so.

[00:07:50] Speaker 03:
When they're telling commenters, you know, we may consider vessels under 26 feet to be for an exemption for very specific reasons, that gives no notice that commoners should anticipate that they might exempt a different set of vessels.

[00:08:05] Speaker 04:
Okay, well that did it, but why doesn't this provision about phasing in give you notice about 40 feet?

[00:08:11] Speaker 03:
Because I think the phased in approach, let's say that basically what they would say is we're going to require based on vessel size,

[00:08:19] Speaker 03:
It's saying that we will still require the TEDs on all sized vessels.

[00:08:22] Speaker 03:
And the only difference will be the timing of when those requirements kick in under the rule.

[00:08:27] Speaker 03:
And that's different than saying we are not going to require them at all on vessels that are over a certain size.

[00:08:39] Speaker 03:
I see that I've used up my first eight minutes.

[00:08:44] Speaker 00:
All right.

[00:08:52] Speaker 00:
Yeah.

[00:08:59] Speaker 01:
Good morning, Kevin McCardell on behalf of the National Marine Fisheries Service and may it please the court.

[00:09:04] Speaker 01:
Um, I'll start with the logical outgrowth issue.

[00:09:08] Speaker 01:
Unless the court would like me to start with a different issue.

[00:09:10] Speaker 01:
But first, I'd like to

[00:09:12] Speaker 01:
address your point, Judge Henderson, about environmental concerns, not trumping, or economic concerns, not trumping environmental protection.

[00:09:21] Speaker 01:
And that's not what happened.

[00:09:23] Speaker 01:
This regulation is protective.

[00:09:25] Speaker 01:
It reduces sea turtle mortalities in comparison to the status quo by more than a thousand a year.

[00:09:31] Speaker 01:
Most of the conserved sea turtles would be endangered Kemp's Ridleys, which the service disclosed in the rule.

[00:09:37] Speaker 01:
So this is a protective beneficial regulation that contributes to species recovery.

[00:09:44] Speaker 01:
There's no requirement in the ESA that the agency achieves species recovery in one fell swoop by one action.

[00:09:52] Speaker 01:
It's permissible to take an incremental step, especially whereas here a greater step would have such a significant economic impact on fishery participants.

[00:10:02] Speaker 01:
So this was a rational decision by the service based on permissible factors, which is all that's really required.

[00:10:08] Speaker 01:
They achieved a significant conservation benefit, which no one disputes, while substantially reducing the economic impacts by up to 73%.

[00:10:17] Speaker 01:
And the final rule was clearly a logical outgrowth of the proposal because the proposal was, hey, we're going to expand the required use of TEDs to all skimmer trawl vessels.

[00:10:30] Speaker 01:
The final rule expanded the requirement to a subset of skimmer trawls based on vessel length, which was an issue disclosed, which was a basis for the alternatives considered in the final rule.

[00:10:45] Speaker 02:
Can I ask you a question about

[00:10:47] Speaker 02:
Fox television case from 2009, I think the district court cited it and it's a big case.

[00:10:54] Speaker 02:
And I take it to mean that when an agency changes its policy for discretionary reasons, it has to explain the new policy, but it doesn't necessarily have to

[00:11:13] Speaker 02:
explain the new policy rather than the old policy, so long as it recognizes it's changed the old policy.

[00:11:20] Speaker 02:
If we think of the 2016 proposal as the agency's thinking in 2016 and then think about how it changed its thinking in 2019, Fox is maybe a pretty good case for you here.

[00:11:36] Speaker 02:
But I read it, I think maybe it could be read to suggest that when that change happens, it has to be

[00:11:45] Speaker 02:
It cannot, sorry, when the change happens, it cannot be based off of circumstances that were central to the prior policy, unless it explains, unless it explains that.

[00:12:00] Speaker 01:
Do you agree?

[00:12:01] Speaker 01:
Well, first off, I'm not sure if it's appropriate to apply FOX to a situation where you're talking about a change from a proposal to a final rule, because the issue there is you're changing a final policy to another policy.

[00:12:14] Speaker 01:
So I'm not sure if the whole rubric applies.

[00:12:16] Speaker 01:
But even if it did, it's a two-part test.

[00:12:18] Speaker 01:
The agency has to show that it was aware of the change and give reasons for it.

[00:12:22] Speaker 01:
That's it, as far as I recall that case.

[00:12:24] Speaker 02:
Give reasons for the change, and it has to give reasons for the new policy, not necessarily reasons why it

[00:12:32] Speaker 02:
the old policy wasn't good enough.

[00:12:35] Speaker 02:
So I'm with you on that.

[00:12:36] Speaker 02:
I want to come back to the first point you made, because I think there might be something to that, too.

[00:12:41] Speaker 02:
But I take it to be maybe sort of an exception to that, that if the agency's old policy was grounded in some facts that haven't changed, the new policy may need to... Does that matter?

[00:13:02] Speaker 01:
I'm not sure if that would matter.

[00:13:03] Speaker 01:
I mean, I think, strictly speaking, the only requirement, other than being aware that you're changing your policy, is to give reasons for it.

[00:13:10] Speaker 01:
And they gave a good reason here.

[00:13:12] Speaker 01:
The facts did change.

[00:13:13] Speaker 01:
They received comments from, you know, well.

[00:13:17] Speaker 02:
I don't know.

[00:13:17] Speaker 02:
Like, they knew what it was going to cost before.

[00:13:20] Speaker 02:
And that understanding of what it would cost didn't change.

[00:13:23] Speaker 02:
They just decided in 2019, it wasn't worth the cost.

[00:13:29] Speaker 02:
And I take your argument to me, that's a policy-making decision that they're allowed to make without having to explain away the old puzzles.

[00:13:38] Speaker 01:
Well, I don't think it would be fair to say that FOX stands for the proposition.

[00:13:42] Speaker 01:
If the agency says, hey, we were aware of these economic impacts before, but now we think it's a bigger deal.

[00:13:49] Speaker 01:
And we're going to draw the line somewhere else now, because we're prioritizing, to some extent, these economic impacts more than we did before.

[00:13:55] Speaker 01:
That's perfectly permissible.

[00:13:57] Speaker 02:
I think you're right about that.

[00:13:58] Speaker 02:
And can you return to the point that you made about maybe FOX doesn't even apply here at all?

[00:14:02] Speaker 01:
Well, I think the FOX rubric is aimed at when an agency actually changes

[00:14:07] Speaker 01:
It's final policy from A to B. And here we just have a proposal, which the entire point of publishing a proposal for notice and comment is to solicit suggestions for change.

[00:14:20] Speaker 01:
So again, I didn't look at that case because it wasn't cited up here, but I have read it before and I don't think it's meant to apply to a proposal, a change from a proposal to

[00:14:31] Speaker 01:
final decision I think you know the logical outgrowth test is more the appropriate analytical rubric that might be right and I think it was clearly satisfied here I mean the Supreme Court in the Long Island care at home case essentially made the point that

[00:14:47] Speaker 01:
You know, not adopting a proposal is always a logical outgrowth of the proposal.

[00:14:54] Speaker 01:
And they cited this court's decision in the Arizona public utilities case, where the agency proposed to subject tribes to all of the same requirements as states, statutory requirements.

[00:15:07] Speaker 01:
And then its final decision only partially applied tribes to those requirements.

[00:15:12] Speaker 01:
So that shows that the Supreme Court also drew the connection between

[00:15:16] Speaker 01:
you know, not adopting a proposal or partially adopting a proposal as being a logical outgrowth of the proposal.

[00:15:22] Speaker 01:
And that's especially true here when the decision is based on issues that were disclosed in the proposal.

[00:15:29] Speaker 01:
I mean, if you look at the table on JA 46, that starkly highlights the difference between the alternatives.

[00:15:36] Speaker 01:
And it shows that the major considerations were

[00:15:39] Speaker 01:
The number of sea turtles that would be conserved versus the economic impacts.

[00:15:45] Speaker 01:
Those were the competing considerations.

[00:15:47] Speaker 01:
And the agency disclosed that it was considering alternatives based on vessel size, and that the more vessels you include, the greater the conservation benefit, but also the greater economic impacts.

[00:15:59] Speaker 01:
And ultimately, its final decision was hosted.

[00:16:02] Speaker 04:
246.

[00:16:04] Speaker 01:
It's in the draft.

[00:16:09] Speaker 01:
Environmental impact statement.

[00:16:12] Speaker 01:
That starkly lays out central considerations.

[00:16:16] Speaker 01:
Conservation benefits essentially against economic impacts.

[00:16:22] Speaker 01:
And it shows how those change as the alternatives, two of which were based on vessel size.

[00:16:28] Speaker 01:
Under each alternative, two of which were based on vessel size.

[00:16:33] Speaker 01:
So the final decision wasn't based on some new factor, as in the Fertilizer Institute case, or even in CSX case cited by the plaintiffs.

[00:16:43] Speaker 01:
It was based on these specific considerations that were disclosed.

[00:16:48] Speaker 01:
So it was clearly a logical outgrowth of the proposal.

[00:16:51] Speaker 04:
I'm sorry, is vessel size supposed to be in this chart?

[00:16:53] Speaker 04:
Because I don't see it.

[00:16:54] Speaker 01:
Well, this shows the alternatives and the

[00:16:59] Speaker 04:
Oh, you're saying within the alternatives, there were vessel size.

[00:17:01] Speaker 01:
Yes.

[00:17:02] Speaker 01:
26-foot alternatives.

[00:17:03] Speaker 01:
Right.

[00:17:03] Speaker 01:
They're discussed earlier in the draft EIS.

[00:17:06] Speaker 01:
So everyone understood that the service was considering drawing the line based on vessel size and that the competing considerations were conservation benefits and economic impacts.

[00:17:18] Speaker 01:
And the final decision was based on those same factors.

[00:17:22] Speaker 01:
So it's most definitely a logical outgrowth.

[00:17:27] Speaker 02:
your opposing council did not contest that economics can be a factor.

[00:17:35] Speaker 02:
So I think you two agree about that.

[00:17:37] Speaker 02:
What's the authority for that?

[00:17:38] Speaker 01:
Well, I think the service could permissibly weigh economic considerations in deciding when to draw the line based on the statutory language and sections 4D and 11F of the

[00:17:50] Speaker 01:
I guess I would essentially give the agency discretion to promulgate regulations as necessary and appropriate and section necessary and advisable in section 40 and as appropriate in section 11 F that in conjunction with the Supreme Court's decision.

[00:18:06] Speaker 01:
in Michigan VEPA clearly indicates that economic considerations fall within the broadest scope of appropriate and advisable considerations that the agency at least has discretion to weigh.

[00:18:21] Speaker 01:
And that's undisputed, of course.

[00:18:23] Speaker 02:
This goes to the logical outgrowth point.

[00:18:26] Speaker 02:
You think everyone could understand from the 2016 proposal that it was possible you might eventually draw a line about vessel size when only two of the seven alternatives included vessel size?

[00:18:40] Speaker 01:
Yes.

[00:18:42] Speaker 01:
That in conjunction with the other portion of the proposal that Judge Pan discussed, where we said, hey, we're considering phasing in the requirements based on vessel size with the theory that larger vessels have greater potential to interact with sea turtles in the fishery.

[00:19:03] Speaker 01:
So we'll get the greatest conservation benefit by targeting those larger vessels.

[00:19:08] Speaker 01:
And that's the same logic that the service used in the final decision.

[00:19:12] Speaker 01:
So those combination of factors, I mean, it's hard to imagine what would be a logical outgrowth if this wasn't, particularly when the case law is clear that the agency doesn't have to choose 26 feet.

[00:19:24] Speaker 01:
It didn't have to do that.

[00:19:25] Speaker 01:
It could change the number.

[00:19:27] Speaker 01:
So unless the court has any further questions for the reasons stated here in our brief, the district court's well reasoned judgment should defer.

[00:19:37] Speaker 00:
Mr. Ayton, how much time does Mr. Ayton have?

[00:19:39] Speaker 00:
How much time does Mr. Ayton have?

[00:19:42] Speaker 01:
How much time does Mr. Ayton have?

[00:19:43] Speaker 03:
Thank you, your honor.

[00:19:45] Speaker 03:
So I want to address two points.

[00:19:46] Speaker 03:
So first, we're not talking about the option of not adopting a regulation at all.

[00:19:52] Speaker 03:
We're talking about an option of adopting some regulatory standard that the service never even mentioned was possible in the proposed rule.

[00:20:01] Speaker 03:
And the draft EIS, which is at JA 221 to 223, explains that it came up with this 26-foot standard because those vessels are unique.

[00:20:12] Speaker 03:
That's what the service said it was contemplating might be an option for the final room.

[00:20:17] Speaker 03:
That would have been a logical outcome.

[00:20:19] Speaker 03:
The service never said anywhere that it might come up with a number different than 26 feet in terms of which vessels are required to have TEDs and which are not.

[00:20:29] Speaker 04:
And if they- What do you think that they need to have said to put you on notice of this?

[00:20:35] Speaker 03:
I think what they would need to say is,

[00:20:37] Speaker 03:
Here's a 26 foot option.

[00:20:40] Speaker 03:
We are considering other options for a yes or no required.

[00:20:45] Speaker 03:
Not phased in, but our test can be required at all.

[00:20:48] Speaker 04:
Why does it have to be that exact?

[00:20:50] Speaker 03:
I think they, because ultimately the outcome of the regulation is who is going to be regulated.

[00:20:55] Speaker 03:
And I think regulated parties, interested parties here need to know who might be regulated in the final rule to comment.

[00:21:03] Speaker 03:
And so there needs to be some indication that there's going to be some change.

[00:21:08] Speaker 03:
They don't have to stay 40 feet.

[00:21:10] Speaker 04:
But aren't you on notice because they were considering not having a boat limitation at all, a boat length limitation at all.

[00:21:16] Speaker 04:
So everybody who owns a boat is on notice that this might apply to them.

[00:21:20] Speaker 03:
Perhaps, but for our clients, for conservation groups, the notice here is- But you just said it's for the people who are going to be regulated.

[00:21:30] Speaker 04:
Everybody who owns a boat had a notice that they could be regulated.

[00:21:33] Speaker 03:
The question here is not, we're not looking at particular, like the notice question is not about trying to break out the public interest of parties into different sectors.

[00:21:41] Speaker 04:
It's a general- I was just following up on your previous answer.

[00:21:45] Speaker 03:
And so I think they just did to finish up.

[00:21:48] Speaker 03:
I think they need to open and say they might do something different than 26 feet.

[00:21:51] Speaker 03:
They might have to give some indication of what that metric was.

[00:21:53] Speaker 03:
You know, say we're going to do length versus this last question.

[00:21:56] Speaker 04:
But didn't they do that by giving you seven alternatives, five of which meant all boats with no limitation on boat length?

[00:22:03] Speaker 03:
They did not give any indication that they might come up with any length other than 26 feet.

[00:22:08] Speaker 03:
So what they said is you could expect either all vessels are going to be covered or all vessels greater than 26 feet.

[00:22:18] Speaker 03:
And that matters because the vessels are operationally different.

[00:22:21] Speaker 03:
Vessels that are under 26 feet are fishing in very shallow waters, about four to five feet deep, where there are very few sea turtles.

[00:22:27] Speaker 03:
Vessels in the 26 to 40 feet range are fishing in about 10 feet of water, which is like the hot spot for Kemp's ridley turtles.

[00:22:35] Speaker 03:
And so the options in the proposed rule, either all or vessels over 26 feet.

[00:22:40] Speaker 03:
We don't have to worry about whether TEDs are going to be required where vessels are overlapping with Kemp's, because all of the options would require TEDs in that habitat.

[00:22:48] Speaker 03:
But then when you say the exemption is 40 feet, now you've got this set of vessels that's fishing in prime chemistry habitat that nobody had any notice might be exempt from TED requirements.

[00:22:57] Speaker 03:
And that's just something that we would have raised in comments and discussed.

[00:23:01] Speaker 02:
Can I ask you one question?

[00:23:02] Speaker 02:
Would you concede that the agency here does not have to explain why the 2019 rule was better than the 2016?

[00:23:13] Speaker 03:
Well, you can see that.

[00:23:14] Speaker 02:
Our argument?

[00:23:15] Speaker 02:
What they have to explain is that the 2019 rule was reasonable.

[00:23:18] Speaker 03:
What they have to do is when they give reasons for what they're doing, those reasons have to be based in fact.

[00:23:24] Speaker 03:
They can't be arbitrary.

[00:23:26] Speaker 03:
And they drew the line and said safety justifies setting a standard of 40 feet.

[00:23:32] Speaker 03:
But the findings in the rule and in the IAS all said we only have safety issues.

[00:23:37] Speaker 03:
We've only identified safety issues for vessels under 26 feet.

[00:23:40] Speaker 03:
And they explain in the final rule that they've done extensive TED testing on vessels over 26 feet.

[00:23:48] Speaker 03:
And so they've got this testing information.

[00:23:51] Speaker 03:
They know from there, they haven't said that there are any safety or performance issues based on that TED testing information.

[00:23:58] Speaker 03:
And we'd urge the court to look at that.

[00:24:03] Speaker 03:
The citations in the final rule where they talk about the testing are at JA 428 to 430 and 432.

[00:24:15] Speaker 03:
And the final rule directs readers to look at the final EIS for more detail.

[00:24:19] Speaker 03:
And that detail is in the administrative record at AR 1689 to 1699.

[00:24:24] Speaker 03:
So when they said that safety justifies a 40-foot standard, that choice is inconsistent with what the agency found.

[00:24:32] Speaker 03:
And an agency can't regulate where the reasons for regulation don't match up with its findings.

[00:24:39] Speaker 00:
All right.

[00:24:40] Speaker 00:
Thank you.

[00:24:40] Speaker 00:
Thank you.