reply brief all the requirements of this court to review the merits of our homes if we can and as the court recently explained in the maintenance of way and lease case that we cited a supplemental for it the standards for hunt review are exactly the same as the e p a in our case we demonstrated that there has been final action here by the f r a which was to approve a agency action also has to be published must be on the record right and where has that happened yet we are alleging that in everything that of this program they failed to comply with any of the steps to required it to be done on the record with a decision that explained how this was consistent with the public interest in real safety and embody how the certificates corner it was at least passively approved  approved to adopt and took final agency decision action on their passing technically there was no order issued what they did was simply allow it to take effect now i think of them as the regulatory scheme they have that means that as if on that th day stamp with the program they own that yet it is not clear because there is no public record in the hub that the actually requires that there be an order issued and there has been  order issued which can be another it's part of our claim that in no aspect of the system the follow the process that would have produced the kind of record available for full review on the merits as you head in the jurisdiction because because when we find all the agency action is taken that does not comply with the regulations require and the statute requiring it to be done on the record through a particular process this court has made it clear that it doesn't part of pilot programs test programs demonstration projects but failed to do that at any stage in this case did the pilot program did that require agency approval yes it did if you look at the very understand i just was there for a moment because as simple as that you can do the brake testing at the laredo yard instead of on the bridge well there are there's actually two types of brick testing the full brick testing has to be done even under this new what you call pilot program we know what that's not my case yes american it's not clear that we don't even know if you're going to share there that might be perfectly fine because we don't even know what the operating conditions are because there has been its own program saying how it's going to make that happen and how it's going to be responsible for ensuring that before commencing operations so this is not a question of chasing after someone in policing it's a situation in which the entire program was proposed in the same way that one would do a pilot program producing a golden different we really believe it's on the record but without form following any of the procedures that allowed the making of a record  independently has to maintain its own program covering its own train bringing personnel and they can say we're going to rely on the certifications of another real road if they comply and demonstrate how they do and that would be part of it but the other real road that passively says we're willing to make our services available to certify it doesn't absolve the actual operating real of the responsibility to present its own prince william sound to continuously there is simply no approval of a pilot program or a suspension or waiver because they can operate without approval so you're on it because the us railroad actually american railroad approves or sort of extends its certification takes a takes responsibility for the mexican engineers and conductors yes  agency blesses that agency at the at the agency approves the railroads certification program that this sort of training and process the process for certifying individual any final agency action has to be has to be written on the record in accordance with the agency's own regulations none of that happened here right while your honor if that it that is the case we do know that the time for approval or the regulations don't require it well i'm sorry when the regulations don't require don't require the publication of an approval of the certification program what about these are mentioned in use these positions and they are they're out of time because they failed within sixty days to challenge an order that was the did not comply  satisfy the terms of the hobs and i don't i'm not aware of an exception to the final rule for people who happen to know about it because i mean or you know the case it says i'm not either didn't comply with the hobbs act and what do you think its rules are with respect to these if it's not the one i cited about the federal talk it system what is it it would be the rules governing the certification the approval to doesn't the agency have to publish this isn't that what this language means and how can you hope how can the agency possibly hold petitioner responsible for not filing within sixty days if you didn't the whole purpose of this object is to give people notice of their obligation to challenge an agency that's why it's there yes your honor if i may respond should respect to point at what point it is actually challenging is this purported pilot  the clock doesn't start running so under one theory are you arguing that their challenges to the certification orders are untimely what can our president or your honor the challenge the certification order is in fact as i understand it from and it's a little bit of a moving target and their presentation is that there was no certification of the mexican railroad that was actually in an absence of an order it was this a challenge to this pilot program explain to him the way i read the brief in your response i read them saying you're challenging two things to challenge what they call the radio project which is allowing the trains to mexican trains to move to the united states a time and even if they were not they knew about it so why am i misunderstanding something here that there's two separate things are challenging your honor and getting that it's a bit of a moving target the approval but they say what the agency did was green light trains coming from mexico to laredo and that's that's not in fact what happened including the green lighting of cruise you know engineers and conductors coming from mexico  certification program several years ago when a modification to the cruiser vacation programs and you told them they didn't need to specifically told them in the e mails at least they don't need to change the charts right or too so that was a decision by the f r from mexico correct yes your honor and if they stand up and say one of the things we wish to challenge is the certification of orders as applied to these engineers certainly the engineers and maybe also the conductors coming from mexico your only answer is i saw it in the brief was that they were untimely no your honor that is not our only answer answer is that the the underlying decision that they have  yes and the government can come up and say well as to a b c there's no final agency action and they can win that but they don't get rid of the whole case if in fact they can see there's finally agency action is to e f there's no basis for dismissing those two because there is finally agency that's what you do so the ruse is no yes the time hasn't started running but there's no fine work for them to challenge then your honor then b if the agency word to publish its order then they could could bring the challenge if that's only way you can say that sentence is if you agree the passage approval was the intrigue for purposes of the hog's act that started the clock running yes you're ok that's the we have an entry of finally agency action order approving the certificate or i mean it's only two hundred and forty one dollars at this point yes and so the clock started running you say until it was so the intrigue happened and what we're saying to you is fine but we have precedent that says when you into the final order for your own agency purchases right but you have not published it yet you are there isn't actually can be a challenge but the clock doesn't start running on them until it's published doesn't mean they can't challenge it if they somehow find out about it but they are not out of time if you haven't published that's how i put it as long as you've entered with your arguments as you have then and they aren't out of time then our argument before this court now was that b agency somehow issued a secret order that that required no certification from the why the time why they were out of time since the agency concedes that it did not comply with the object of course i should like to pick up on the drug laws question of where it leaves us if you look past the time of this question  even if we can see even i don't think we do that the petition was timely that still doesn't give this court jurisdiction because the unions did not specify that was challenging either the part to forty or the part to forty two dollars certification in th i don't see how we get to your question why don't we get to the question of whether their petition is adequate is a violation of the hobs and then they're not out of time for filing the petition well you know i'm not specifically speaking about time here we know  what form that from reading their petition i would say from the beginning is not part of what they're chanting here there is no indication that petition so here is what has morphed into but there was absolutely no indication from their petition not the government or in this case the interveners job to guess at what the potential guest in this little central thing that everyone agrees you had to do to start bringing these crews in the question of whether there's other stuff out there i'm not sure that's a very traditional because the unit hasn't really brought any specific challenge the part to forty two program that was approved then you very much argue that you can't have one where road approving the crew for another road just because of their siblings under a parent company  very much argued that i don't think i made that up but they so they they certainly identify specific things they do not like about the two hundred and forty two program with regard to for instance whether there is the same amount of classroom training to forty yes or the two hundred and forty program that they raise no mexico was allowed to commence operations without putting in place its own program that provided how it was going to have its crews trained and certified by in the real world so both aspects are part of the pilot program but the pilot program that's not the only final action there is one final action and we're really that absolutely it was done in violation of the hobbs act in and the government we addressed it only because the government argued you can't challenge any aspect of the pilot program because you didn't challenge that one within sixty days after we had opened up with our publications the other aspects the government keeps saying that the punitive pilot program and i would draw the court's attention to every every submission in the join including all wearing different types of hours of service reporting that did not include the essential translators on the train crew that involved truncated reporting for only four hours worked in the united states no time worked in waiting time next occur every that has happened to the certification voters that say the break testing waiver that the railroads here submitted are here's a new brake testing way for to the f r a and they passively approved it as rare roads didn't they've been doing this change and break testing this is all allegations to be clear but they've been doing this changing the brake testing expanding the way for they already had in a way that's improper and what they should have done is gone to the agency and gotten permission then you would have fights about whether they could do the commission but that's what they should have done exactly that sounds like an enforcement right now is able to actually be agencies who own responsibility as we'll because when somebody comes to you and through the proper procedures to give public notice that that waiver was being requested and was let's say they didn't do i think their seriously their claim as to that is that they haven't done anything there is no final of the proposed pilot project that they're asking the a fairy to bless their graft i mean it that they were submitting a purpose this was the initial this was the initial proposal of the pilot program for meeting there have a meeting with the they were as they were leaving out draft is attached is a copy of our plan for review j a forty four dollars and this watch the whole development of together with the agency of what became the final operating documents that we've cited in our brief on the w also requires q c as currently operates under a waiver that requires them to stop at a bridge with a new project this will still be the case so they are blessing overtly and saying that they have approved and stepping into the shoes of k c s are and doing the same with abbreviated brake testing at the border and again this is all documentation that was hidden from the public and hindered from us until produced after the fact by the agency but it makes it clear that from the very beginning to the end they were proposing a pilot program that required several waivers and variances in the normal procedure for doing that on under forty nine dollars when i say with a new project this will so they had to seek and continue to renew a waiver to allow them not to do that now if a different real road which is little k c assembly is will be operating on that stretch of trucks starting at the border and going into the greater that's an entirely the idea of the waiver right now they've allowed the mexican room to commune just is going to you know now i'm talking about before all of this even though the train came from mexico it was not the case yes mexico's train once it hit the border w challenged but just assuming that were legitimate so they can certify these crews and then if they are casey american the certified cruise which happened to include mexican engineers are doing the brake test on the bridge whatever the the mini brake test under the waiver does that count as casey american doing the back test because they certified to put aside your argument about whether they could do it i'm assuming a loss that argument for this question no it doesn't count your honor because of what the and operates in the united states everything that is required to be done by the matter by any other real route is his yes mexico's responsibility so they are starting from scratch and they themselves need to apply does that make any sense i'm sorry but it doesn't make any sense to me based on what happened before you had this program was perfectly fine to have a train that came from mexico that shall we say belong to casey mexico and as long as they are true got off and your member for what is done by the user who is being given operating rights over that trap and the user is k c s mexico and whatever contractors it chooses to change agreement was submitted to the f r switching of interchange between from the border to then when it physically now becomes stars responsibility and so they have made that representation but without any reference to if that actual support for we have provided the operating agreement that was referenced in the pilot program submission and that again is another aspect of procedural this should have been addressed and taken account of by the gauge perfectly forward with having this american company vouch for everything that is going on by this other real world which is an entirely separate legal entity over which we have no control and as to which the interchange agreement on confirms that we