railroads must disclose to state and local authorities under the act that specifically includes the advanced notification information at issue here which is regularly updated county by county data on the routes number contents and emergency response plans for each railroad trains carrying certain hazardous materials but the agency failed to establish any security or competence reality protections for this information because it had already co before congress passed the statute that this information was not proprietary or security sensitive under preexisting federal regulations that position is on the whole for three basic reasons st congress expressly directed period right of both categories good ratio but no you just said it doesn't matter whether it's security and confidentiality yes that's correct so then why do we get defense true and that is how i understood you your argument yer argument is that any information that's provided to the railroads at the end of a very long sentence here with real wars yes i'm has to be prevented then why is congress wasting so many worse why why say establish security in confidentiality protections when they really mean no one can get it except for the fusion center in the resource or whatever but i think it's down to the security of it as you know the protections is a fairly natural way for congress to say not what they really mean is don't release it at all even if that has nothing to do with security or confidentiality that is your position right your argument is that it has its confidentiality is automatically involved because fourteen and after that there was a period of about a year and a half where the agency essentially flip flopped on whether this information should be protected from public disclosure more broadly than the list of recipients in the emergency order  heard evidence for a hypothetical suggesting how any particular snippet of this information might create a problem with the key aspect of the information that is required to be disclosed under the fast act is that it includes the routes that the trains take by county for each railroad and the government emphasizes that this information does not include for example origins destinations or customers but if you have county by county information about each railroads routes by which its trains carry has materials it's not actually that difficult to figure out a lot of that information which the government seems to agree is sensitive and this is actually a point that the association of prevent the release of this information to authorize persons so i don't want to know that so i'm still stuck with why don't they say that so normally we presume the congress knows what the words mean particularly in this kind of context certainly and they have concluded both homeland security and d o t that this information doesn't qualify under those definitions so if congress wanted to do more then i don't see why they would continue to use the same words exactly the same words as they used in the regulations why don't they just say what you said which is public doesn't get this information period so two points  honor st as i understand the government's own construction of this language and certainly this is how we read it the reference to the preexisting security and confidentiality provisions that you refer to the d o t and t s a regulations and forty nine  is in the including clause that's including protections from the public release that provides your information or security sensitive information and if that were the only thing the government had to do then this would be a very different case but that information is a subset of the information that this provision expressly tells the agency to protect the agency must establish protections including protections for proprietary information or security sense of information to prevent the release to authorized persons of any release to i'm authorized persons of any electronic crane it's just information end any advance notification and any information provided by class one records that's what you think it means right i think that's the only way to it has a and or meaning there's a lot of meanings of war here and the government's i take it the government's reading is that some of these things get one kind of protection from of these are worthy of confidentiality and security and some of them are i agree that that is the government's reading i don't think the government has evoked the sort of or language that you're referring to as i understand the government's position in the final rule  term an authorized persons as used in this provision and i think we agree with the government that that is really that the crux of this language the government says that refers the least in connection with the offense and information information here to  state open records law that's essentially congress incorporating into this provision all fifty states of the records laws so that there are only i'm authorized persons in so far as any individual state would deny a four year request under state law for this information with respect to the information that's not security sensitive or confidential with respect to the events now that it was not all information it's to a rd group of kind of information yes i think that is the government's position your honor and that simply is not a plausible reading of the term authorized person as used here for one thing it would have been very easy for congress to refer explicitly to state law if it intended the contours of this federal competency ality objection to vary because federal law is presumptively uniform across the entire country but you're not giving it any definition either you're giving it a zero definition you're saying all information can't be disclosed our definition of unauthorized persons your hon sufficient to as the statute says prevent their release to only authorized persons of that information and then the question is the same level of taxation is required across these categories not necessarily i think the agency probably does have some amount of leeway under this language to vary the level of protection but what it can't do is an act no protections whatsoever because it concludes that some of this information is not sensitive even though congress explicitly named it list of different information but the confidentiality provision only names two different types of information both of which are addressed in the adjacent provisions of the vast act and in that situation it makes much more sense to conclude that congress said here that you categories ration that you railroads must disclose you d o t must establish protections to prevent the release of that information to anyone other than the authorized recipients so your honor our definition of unlawful rising persons in the company of geology provision is anyone other than the recipients for this information who are specifically described in the adjacent provisions of this statute so if you look at paragraphs eighty three and eighty four congress held out who should get this information because it say anywhere that those are the people who are authorized it is not you that we were how would if they had said that that would be very helpful i that would absolutely be helpful your honor it does not say authorized but if that is the obvious implication here because this is congress telling an authorized persons none of what the agency did is sufficient to discharge its obligations under this language to think the only thing i see under one hundred and seventy four point three one t c three and that establishes nothing it tells the railroads if you have something you want to keep secret indicated in your notification yes your honor and if that's a very important point because the railroads already could and did do precisely that under state law the debate that d o t engaged in over a year and a half leading up to the passage of the fast act was should we extend protections beyond what the railroads are entitled to under state law if you read the fast act merely as incorporating the existing level of protections under state law for this information this provision has no any real function spam which is something that didn't exist before which is a requirement of disclosure and the rest of the backside certainly does no no no no i mean the read the regulation has it has the  to list what they were guarded as confidential and secret yesterday and then it then has the imprint pre mature of the government telling the states that the railroads think this information is covered by the state law right i guess right now but practically speaking that is exactly the situation that existed before the fast act and there were real complaints that i'm aware of that states were inadvertently disclosing this information under state law as agency discusses in the final rule the problem rather was that states work faithfully applying their open records laws to disclose this information in response to open records requests so again if you read this language the way the agency reads it it has no practical effect as to this information because it ends up just preserving the status quo exactly as it was just before congress passed the statute and that is a particularly implausible reading of this language because we know that congress was aware of the back and forth in the agency leading up to this congress explicitly kind of find the emergency order here i see my time's up those bridges more quickly the agency has consistently acknowledged that the emergency order kind of point here was not intended for this information to be released publicly in the final pool at j one hundred and nineteen the intent of these requirements is to ensure that local emergency responders and emergency response planning officials have access to sufficient information regulation to preempt fifty state laws yes will not necessarily preempt your honor well because that was always a problem was that the state laws under there are records was could release information but a lot of the open records law is having is that exceptions for information that is protected under federal law so it wouldn't necessarily take preemption to establish protection here any sort of federal provision that said this information is confidential would likely be sufficient to trigger protection under state law the problem was the absence even of that so what about the states that are using every state's open records law has a exception for for i don't i i would not swear to everyone i believe the vast majority if not all so you think the rest are preempted yes right that would be normally resay we don't assume congress means in the federalist system to preempt state laws that they don't say so certainly that they don't if we normally don't think the big give the agency the authority to create up state i certainly that is a general background principle your honor but here i think it is the only sensible reading of this provision which does after all deals pacifically with the providing of information through this federal program to certain state agencies and actors in that situation it is far from a stretch to conclude that congress told the agency to establish protections that would affect the dissemination of this information under state law which was after all the essential issue that was debated extensively within d o t and among industry and stakeholders to the federal response section a mandates that the red rose have to disclose different kinds of information and some of that information is obviously sensitive and for that information namely the train consistent commission that is into making proceedings now there are no rules on it so when there are rules the agency is going to have protections that are sufficient to meet the requirements  because that information one can see is very important to st responders it's very relevant to know what it is what is in each individual tank car but at the same time that is the kind of information that others will want to get hold of and they authorized to have it under federal law so for that type of information there are an authorized people under federal law unauthorized persons but it also requires a requires the provision the disclosure of other information which is not as sensitive and that information is not necessarily covered under it is not restricted by other federal law but it might be under state law and then there is going to be other information which is not for which there are no one authorized persons under federal law or state law there and for that type of information there will be no unauthorized persons congress was not saying there must be someone who doesn't get this information congress was saying that to the extent that there are persons who are not authorized to get the information in a we recognize that that information varies and to the extent that there are persons who are not authorized to get it don't let them get put in place protections so that those restrictions for instance restrictions in federal law are enforced and this is in the context of a statutory provision a in general which is all about requiring more disclosures to the state so that the state can convey that information to st responders and  with respect to that information i'm sorry your honor what do they does the in the agency happen with respect to the information after the st or the advancement vacation yeah or i mean really information provided by class one railroads doesn't compass all the rest of it right so that's provided by class one railroads so if you're asking what the agency's responsibility toward the advancement for cation is the agency made a determination which is not challenge here that this advance notification is not it's its disclosure we see this of the course of six years of experience does not result in harm and they had no there had been no showing the harm from its disclosure we also see that the agency has made her determination that it does not constitute and does not violate it is not  covered by the restrictions on s s i or proprietary information and that again that is not contested here they don't say that under federal law the advancement of vacation restricts access to certain persons under federal law there they say that's irrelevant whether this information is s s i so with that in context there aren't a lot of tools that the agency has that for information to protect  information that is not protected by federal law right federal law does not restrict who can get that information and you're supposed to under six that's the whole point your book is to establish security in confidentiality protections for these three types of very extensive and very dangerous types of information how many stops they make how many times each week where they go the route that you have to establish security and confidentiality protections i don't think your opponents are saying there are any federal standards that's the whole point there are any and this is supposed to make you adopt them your honor there are a lot of different parts of your question that your question raises a lot of different things one of which is the advancement of occasion does not actually include many of the things you listed it does not include all the stuff it does not include well timed stations it does not include origin or destination points all that is all it tells you how many times a week does the train come through three times does it say it comes through monday wednesday and sunday no this is a one time that come through no it is the most aggregated in general of information it is relevant and significant only to for planning purposes the agency has made that notification and information my reading all of these things that have to be disclosed as as not having to be disclosed i mean the reasonable estimate of the number of trains expected to travel per week through each counting of updates as to the volume or frequency of trains traveling to account in the identification of class three flammable liquid yes you know but this is not very specific information  as i said the agency has determined we have a different view of what specific information i can draw contrast with what is required and train comes with information that is very specific and it would be of great interest to people who should not be getting it easily piece together one county to another well yet after this information was disclosed and it's been disclosed month after month with updates for six years if they began to lose customers to other modes of transportation which is their argument then they could come in and they could say we have anecdotal evidence of this but no one has ever shown me any shelling so there is no indication of harm and what that what that underscores is how unnatural reading of the statute it is to presume that therefore congress intended to put into place a complete prohibition on any of this information being quite stringent about what they allowed to go to be disseminated from the state emergency response missions that's in fact why you have a four because a four requires emergency response commissions to provide that  but what this statute does not do is say that once the even even if the agency has made a determination that under federal law there are no one authorized persons you nonetheless have to shield this information and prevent it you go from going out to others regardless of whether disclosure will cause harm or cardless of how significant the information regardless of whether other federal law protects it nonetheless you have to find somebody who does not get this information and that is not a natural reading of the statute we are not going to lightly assume that congressman to compel the agency  information regardless of whether it needs to be protected and there are determinations here by the agency that this information as it currently stands this is not information that is provided that is protected from disclosure under federal law the agency said it might be under state law and that's what the regulation does i mean the whole all of it is about formalizing the process formaliz ing what the agency already had done and extending the disclosure requirements and so in a six they're saying put into place regulations and so the agency has adopted a regulation that involve century labeling and labeling is an important protection for information you label something is classified or label it as top secret it tells people who gets to see it and he doesn't get to see it so this says and this says to the railroads you should notify the states when you give the information you can tell them that you believe this is protected under state law and then it will help protect the information because before they when they get a request to disclose it at that point they will be on notice that you have raised this doesn't mean they will do exactly what you say and share your opinion of state law well maybe they will and maybe they won't that this isn't about giving anybody a veto power this is about alert the state let them know that you have a concern and you believe this is protected by state law could they were they doing this before with some of the real world war but all of this community in the event of accidents real accidents were in fact the background for this so they do have to be able to share it they don't just keep the information or they're not supposed to they are supposed to share it with local emergency planning committees and st responders and what kind of historic backdrop tells us is that there have been a number of developments in which information was not sufficiently shared  so that was the impetus for the emergency and that is kind of carried over into the faster they say share even more widely and and we're going to have some provisions that required you to share  it is particularly odd to have the petitioner's reading of the statute in that context of a statute that is about disclosure to the state and making sure it gets down to the ground t responders on the ground to say that nonetheless you should not disclose any of this information beyond the people who are numerated well every state you know when i say that the conditions on the ground are going to dictate different levels of disclosure to different states that's because every state is different if you're a rural state you're going to maybe in small towns you depended upon the st responders who volunteer firefighters and in that take the opposite position now has consistently recognized that that was not the intent of this program shortly after issued emergency order that congress has now caught in the past act the agency issued a guidance document which was discussed in the n p r m here and thirty five and it said this this data is intended for those persons with a need to know that is st responders at the state and local level as well as other appropriate emergency response plans deal she expects the emergency response commissions to treat this data as confidential providing it only to those with a need to know and with the understanding that recipients of the data will continue to treat it as confidential your honour's that is all we are asking for here finally to touch a point that you asked about ted williams the agency has not in fact exercised its discretion under this statutory language to decide that this information should or should not be disclosed to the public apart from whether it is protected as is our interest in regulation through out the rule making materials the agency has consistently taken the position that its hands are time because this information is not s s i under existing rules so even if you think that this statutory language gives the agency some discretion to decide whether this information should be any any closure which in any way that it would be only harm i'm not sure that's quite right your honor i so st as you pointed out of course it would be extraordinarily difficult for us to know whether a competitor and piece together this from his competitors information and i've the other point i'll make on this topic your honor is that although my friend refer to a few times to the six year passage where these rules have been in place i don't take the agency to have evaluated this question throughout that time or at the end of