federal agency rulemaking in this case of this is the the agency in question is the federal railroad administration and the rule making had to deal with so called risk reduction programs which are mandated by the rail safety improvement to rulemaking z f areas the body is primarily responsible for rule makings in the railroad industry in the united states now this broad authority though is not limitless the f r a is limited by you know the mandates from congress as expressed through various statutes in this case the limitations on the f r a is authority is limited by the rail safety improvement act as mentioned and also the administrative procedure act as this is a formal there may be some overlap one of your arguments is that we should vacate the rule because it was tardy by about eleven years or four years of very late and i would take it to be that you injury for articles freestanding 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 and we were injured because i guess a rule would have been better protecting you in terms of safety but in terms of redress ability you know we don't we can't go back in time and so i'm not sure how vacating the rule or even just remanding it without vacating it with regard to the party this would do anything to redress the injury he suffered of going those eleven years or four years without a in place so can you help me with that how how is this with regard to the time when this claim how is this a redressal injury well thank you your honor i guess the answer that i would say that the the congress and the there was a four year gap where you were injured because a rule was not in place how is that injury redress the ball by this court why was that i would define the injury a little bit differently your honor i would define it as the process for the rule making is twelve months as we  said during that process the f r a is required to solicit and receive public comments that it's an active process with the public and stakeholders in the industry in this case the f r a had accepted complete the what they're supposed to know i mean if we followed your approach you know how many things we'd vacate agencies are rarely on time but i believe but the what to add to what my colleague is saying it doesn't make restarted the process they would have twelve months then to complete the rule making under the under forty nine dollars c f r to allow you commented right during during that notice and comment period or that some of these petitioners did file comments that right yes and so is there is there something that happened as a result of the delay from a procedural perspective from the you know not the due process applies but from out that's more procedural is there some is there was four years after it was submitted this is an industry that changes from year to year technology changes safety concerns change year to year the f r s final rule here is based on a stale information at this point stale comments from five years ago and i think you need to think about that and way that specific enough to to give me something to go on well certainly i guess for example i would say part of the real safety improvement act was the implementation of positive train control technology it said essentially a technology that is a additional safeguard on trains that permits if a train misses a conductor engineer missed a signal sixteen was still going to be promulgated based on that still information even if it is in common get it on time not sure i'm with you there you can respond to that and if you would also respond to this you put a heavy emphasis on vacating as opposed to just reminding not just for this claim but for the fatigue management claim as well is it your position that you want to either vacate or do nothing is your position that a rematch and is not acceptable versus when to just we may end without vacating and we look at how disruptive would it be and we look at how how or how bad how wrong how easy to fix it would be a regional rule that has some problem that i mean under that test are you nothing prevents the f r a from restarting the rule making process with information that is fresh and available and i think based on the circuit doesn't exist as this is a rule that is is i mean really i comply i understand the argument but i just do you read the statute any moving to the fatigue management plan do you think it would be lawful for the f r a to accept a risk management program that did not include a fatty management plan 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 is there anything in the statute that requires all of those components to be approved by the agency at the same time well i would say that there's there's not anything that requires it to explicitly to be all approved at the same time but i would point to the subsection in the r s a where the fatigue management plans are included is it's a require component so then the question becomes i believe at what point then are fatigue management partial risk management plans because they don't have the risk manage the fatigue management component wouldn't your claim then only become right but the point at which the agency is you know regularly accepting these risk these risk programs without a fatigue management plan well your honor i would say that at this point the development of risk reduction plans is now currently ongoing this is the process they are to be submitted by class one carriers august st of this year so that development is currently ongoing if you're suggesting that we would have to wait until plans are submitted for review by the f r a and the f then approves of these plans i did in order for the action to be right i don't know if i necessarily agree with that because i think that the final rule is clear and the f r a is stated it's its intent clearly that they're moving forward with this without the fatigue management plan component at this time and that is how the process is going to move forward and the f r a has indicated that they're doing a separate room making with fatigue management plans they issued the n p r m for that i believe on december th of and twenty but based on the timeliness of their how long it took the f r a to issue a final rule with the risk reduction plan i think we could be looking at a period of years without seeing management plans how much time between the  end of the common period in the final rule the end of the comment period the f r a had reopened it twice i believe the comment period ended i hesitate to say a specific day but it was mid october of two thousand and fifteen and then the final rule was issued on february th of twenty twentieth's so that's more than four years four years and two months or so has raised today the st is with respect to the remedy that they have requested as the court's questions suggests that are here doesn't make sense as a practical matter and it also is a remedy that no court has ever ordered with respect to delayed agency action at least as far as what a statute doesn't have a penalty for noncompliance which is exactly the case here and i think as judge edward points out you know if if it were really up to the courts to vacate a rule every time an agency misses a statutory deadline they would be back it or constantly and it would stop any and bottleneck agency operations even forever 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 back it or make sense is big because that might have been relying on stale information but the only example that they have now offered is a part of the rule that they haven't even challenged which is about positive train control so even that doesn't serve as a basis for regular here i think at the end of the day you know this is a role 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 this is a rule that is you know massive involves several components meetings with stakeholders and the agency wisely knowledge that reopening comment period would have been necessary that several public hearings would have been required to push this rollout and ultimately we do have a rule that i think petitioners finding out what the standard is in this performance based standard and so i have some concern that the standard is so nonspecific year that it's a standard list standard so can you help me with with that a little bit 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  a standard that is as nonspecific as your standard here well respect your honor we don't think there's a nonspecific standard i mean congress is mandate here is quite broad to reduce safety hazards and safety risks on train operations and so to accomplish that objective the performance based aspect of this rule is st requiring railroads to identify those safety objectives on their systems so perhaps some railroads have issues with darrelle meant that would be an end objective that they would want to achieve under this rule would be reducing the route and other railroads might deal with more environmental base hazards maybe other railroads deal with electronic or technological issues so the rule puts it at st you know at the st step in the real war of railroads objectives are enough so i can let's say that a train has five hundred of a specific type of infraction per year on average over the past decade and they they set a goal of improving that so that they now only four hundred and ninety nine dollars of those infractions per year going forward would that satisfy the performance based standard and if it wouldn't why wouldn't it that's a good question your honor and i think there's two responses to that i think is the st we have to take a step back and realize that this is an iterative process that isn't just fixed in stone so the railroads are not just setting objectives attempting to meet those objectives and then never addressing additional safety risks to begin with it might well be that when there are five hundred dollars infractions reducing that down by one is actually a significant improvement but this rule wouldn't just require them to stop their roads are constantly required to address additional rests on their system and the nd aspect of my response to your question your honor is that we know that this would be you know a good step to take because this is a collaborative process the rule envisions collaboration between  a railroads and other and 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 f r a so that every is aware of you know what risks exist on the systems and help best to address them so i don't think there's an oversight or there what's the difference between non binding guidance from the agency and your standard which is reportedly a legally binding standard well your honor this this the performance based on or this type of rule you know require these railroads to put together a plan that have objectives and certain processes in there that that the agency is going to approve and it requires care out of god so it's not as if the agencies to sort of gives them a standard less guidance and railroads are off on their own to implement these programs as they see fit railroads have to do their own internal audits every has to conduct periodic audits under the rule and if there is no compliance with the program or if the railroad has consistently fallen short of its deadlines or an implementation is gradual the statute itself authorizes the agency to seek civil penalties for that so i think there is but i guess when would they seek the civil penalties is it a bad faith standard these religious supposed to do these internal audits and figure out what's not to riff it and then they make some reforms and they set some goals and if they are doing that in good faith then they don't get analyzed by the agency and if they're doing that  faith they do get a lot but is it a good faith standard you're at i don't think the standard is a good faith standard but you know candidly i think this is a case by case determination when you know if a railroad consistently is falling short of their obligations under the plan but what i can tell you is that again this is a collaborative process the agency is consistently reviewing these plans the railroads are consistently updating them and implementing additional measures to address new hazards or new arrests and the employees themselves have the opportunity to flag any areas of concern right from its risk reduction program more generally can the agency except the risk reduction programs without a fatigue management plan under the statue absolutely your honor and this is the nd point that i wanted to raise a respon know they're required components of such a program absolutely and i think just raise your question petitioner's suggested earlier there's nothing in the statute that prohibits the agency from you know implementing congress's mandate in a series of steps  to st require risk reduction programs that have certain components and then require an additional component and there's nothing in the statute that prohibits or all require is even roads to implement all of these various components at the exact same time and here it's well with the agency's discretion to st promulgated rule address and components twelve and three and to add an additional rule addressing that last component and it just for what it's worth you know these fatigue management plan requirements once there is a final rule an management well i magically get incorporated into a real risk reduction program so they're not you know it's not as if railroads are ignoring fatigue management issues all together it's just that this part will come later it's so it's only a matter of time so do you agree that  say in in some number of years the agency did not have a fatigue management plan and these programs are radically you know regularly getting approved without fatigue management plans that would at some point be contrary to law or ult ago and there's really no reason to expect the agency not to work diligently to issue that rule 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 that's also an area where the agency has extensive experience 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 but i would be surprised if an extensive amount of time in light of the fact that this is just the last piece of the puzzle here may think you're i'm beat my apologies just to address briefly a few things that were said with regard to fatigue management plans the respondents suggest that they are allowed to address this matter in a series of steps partial compliance one step at a time however it's been defined and i would like to point out though that the you know there is there is a requirement though that the f r a is required to explain why the problem should be treated this way the f r a is not a could put forth any explanation for why there needs to be a separate room making property management plans and in fact i think the record really cuts against their argument that the the r submitted the fatigue management plan issued to the our sac working group is called in two thousand and twelve with john passed on its recommendations then and then the f r a has not taken any action sense until and twenty and in just in the final rule they simply state it should be addressed in a separate room making well why couldn't they be addressed at the same time with these are just speculative questions because we don't know the answer because the f r a hasn't provided any sort of explanation for that  and it's my last point i guess with judge walker you raise a good point with that it's a nonspecific standard and the f r a made it clear that it was particularly concerned with the financial burden on smaller railroads versus larger railroads when it comes to developing and implementing these plans now but i think you i think the final result that record as you said is that this is a very nonspecific standard the f r a indicates in the final rules that it has the ability to scale down the rule sixty percent they don't explain how the rule can be scaled down when you look at some part b of the final rule there is no explanation in any way of how the rule can be scaled down so i think what we have is a kind of ill defined minimum standard that applies across all railroads and also the standards have to be approved by you know for well yet the us judges the they do have to be approved by the f r a but i would also point out that the final rule doesn't contain any sort of real process for how these plans are to as i think judge walker said it's more guidance than anything else and i don't think in this case railroads necessarily know if they're going to comply if they submit something to the f r a if it'll be approved and you know how exactly that process works it's that it's not defined in the