american railroads we are here today challenging the letter of the federal railroad administration holding that the hours of service was applied to individuals who run an automated self test function  could clarify what we mean there what we need is that the employee's operation of the self test doesn't have a direct impact on safety the self test as its name suggests means it's an automated test it's the computer that's doing all of the testing the human operators role doesn't play a role in safety because if your she desk is it up the system itself says something's wrong here is there i know there is in the record a video did that both the video as well as other documents in the administrative records demonstrate that i think the video is probably the clearest aspect of it but one thing i would point out to your honor is that none of the reasoning that the sort of a basic question about path it is and i know it isn't really the way that the case was briefed but you were seeking and in effect an exemption from the ruling from them and you wouldn't be covered by what the what have traditionally covered all testing you're saying look test things change we've got this automated you know failsafe tatts we're not in that world anymore so can you assure us in advance that we wouldn't be technology but i think i would take issue with the notion that we were somehow seeking an exception from the rule that has prevailed as your honor knows what the agency has said year after year after year is not that all testing is automatically covered they have never adopted a per se rule same testing is covered quite the contrary what they have said is ordinarily we deem testing a covered service ordinarily meeting in many cases perhaps most cases but not all cases always said in every case testing is covered they would have said ordinarily we think testing is cover the fact that they say ordinarily suggest that there are situations where testing is not however that's been there are going to be what they do is they approach this very sensibly lawyers got into that shared the cells they did the tests so that's how they normally adjudicate these cases this is an individual's determination so they understand the technology and what's involved in running it did you invite them to do that with you or the well kept to find you should let's assume that it's a consummation of the agency's process for the first prong of the two prong test we say that it's gotten finality with respect to that but on whether legal consequences flow from that can you address that given the predicate that  year in twenty fifteen one of my clients c s acts received a notice of violation from the f r a saying violation is you didn't track or comply with the hours of service statute with regard to tests but what is a do so for that does what is one follows from that and what follows from that is that then we get subject to an internal agency proceeding where the chief counsel's office brings you in and they basically say we are a there's an unfortunate proceeding that comes and you can in that enforcement proceeding they have the burden to show that you're in fact subject to the penalty of course is compromise process i get that that's a practical consequence you could compromise if you want to but if you don't you go to the enforcement proceeding of these they have violation and the agency and that they said well we're not sure this is finally agency action because nothing's going to happen until the enforcement proceeding the supreme court said no but i think in that the difference i think is that that agency has moving forward they could issue pronouncements with the force of think this means we have to do this or else are subject to an unfortunate proceeding and then enforcement proceeding you know we're we're on the hook and the court said well it's too bad you have to and it's true that you you you're practically at risk but that's just the nature of the about how they came down after the letter ruling to take a look at the altar count to get familiar with it and if feels it feels non final to me in the sense that are they doing that because they love trains which i know they  surely you're doing that because they're in an ongoing process of educating themselves about the claims you're making and are open perhaps to persuasion once the rubber hits the road horseman are you saying that's not how you understand has rights twenty five thousand dollars or over us for willful so they're not really saying like in the face of a definitive ruling on our part that this is covered you're nonetheless not complying i mean indicate if the agency thinks it's valid that you are bound by it's letter ruling because he would have looked at the face of something that should regulate you and you would have said i don't care well but i believe in again my good friend mr perry will correct me if i'm wrong i believe it i monitors you know who's coming in and out of the building it has got five minutes it goes down the road to self test and then beg to be automatically becomes a covered employee which brings down a whole host of regulatory requirements on us so so you don't have a in which congress treats status excuse me signal systems maintenance as the state from signal systems tested which tells us consistent both with common sense as well as common usage in the industry that these are different interview will agency action and that this matter is right for the courts the terminations now looking at the court's traditional analysis under bennett versus yours in the first instance as judge when it wasn't mentioned this was the consummation of the agency's decision making process it was a letter ruling by the senior associate administrator for safety who is the chief safety officer of the federal railroad administration is the senior competent official to make this kind of dirt determination someone who's very familiar with our service and terminations and there was no expectation when the agency put out its letter that there would be any further pronouncements on the issue nor was there any obligation on the part of a or disability was one of the consequences of it that had to change the legal terrain of any consequence of the agency doesn't have room making authority with respect to the specific definition that comes out of the statute even see undoubtedly has interpretive authority has the ability to interpret the meaning of that statute and it has to be able to do that to carry out a meaningful enforcement regime that it was a tentative reaction and it was actually styled as a recommendation but i don't think in this case that ultimately matters particularly taking account of what the supreme court said it had at last which involves the you know very related substantial overlapping question of rightness it has to be looked at from the perspective of you know the practical consequences and in this instance with this letter when the railroads are every day under an obligation to schedule their operations and to make labor arrangements that conform to this letter this is done from the agency's perspective there's no need to wait in unfortunate proceeding for this to come up in a concrete case because the agency is not going to revisit in that it force and perceiving the discreet question that decided in any way that unfortunate proceeding which you would have to bring in order to activate any penalty right well to put in your own to explain how the enforcement works as mr greene measured there is a compromise process that has of happening at the end of the fiscal year covering the variety of different types of cd violations that the railroad is being looked out for on that and that's when this man and this letter is i'm just i'm really surprised that you want to stake your regulation on this record we do your honor because we feel that we have sufficient information from which to make that determination and the agency knows how the system operates receive this additional evidence from a guard now but point being not just how this is them operates as a matter of was a matter of the agency's regulations the system can't be failsafe because the agency doesn't simply accept the computer printout from a system operations in a different kind of way the question becomes you know why should the agency depart from the way it's been treating this issue forever what the agency said in a federal register notice it's wrong appendix one going back to nine hundred seventy seven we're not going to hard out testing from the statute because the ordinary course we think that that is critical the system maintenance and that's what the agency did here it just so happens that the agency made it it with respect to listen it is the oldest of us often bound by the letter yes right in the sense of the agency has no expectation that it's going to revisit the question of the letter was based upon at least you know in any foreseeable circumstances so to make it more clear if we're going to enforcement perceiving later on this year let's say if there is a violation that depends upon the specific interpretation of the statu face sanctions for willful violations of the hours of its license that your position i don't know when that specifically happened i can say that the agency does expect the railroads to comply with that you know whether or not the agency would call that a willful violation which additional consequences attach i can't say that in this context right now but he agency does expect that the railroads will comply with this does or does the agency consider it to be willful when you issue a letter that doesn't have the force of law but you issue a letter doesn't have a force well i think the agency has the ability to do that your honor but i don't know that the agency necessarily has to and i also don't know that it's necessarily of legal consequence of the finality of terminations that it would i think has the ability to do what i think the more important point again looking at it from a practical if the question it seems to me this to differ questions one is whether you're binding yourself to it to carry forward the same interpretation which that's that's a question that i think you were asked but another question is does that agency cosseted was that does that letter constant it becomes very difficult to even talk about it in terms of an adjudication as we would typically think about an agency practice because when the railroads actually paid to compromise they're not making any admission that they actually broke the water or anything in that event right and in my experience and about it it's been at least twenty years since there was any further proceeding based upon a disagreement that came out of the sun practically people compromise at all the same way the practically party so correct it if i may around with my remaining time i do want to address some of the points on the merits of him turning first a ors broad legal argument with respect to testing falling under the definition of maintaining and selling your parents legal systems in the first instance the court doesn't need to reach that argument on the merits and it should reach that argument on the merits because that was not an issue that was presented to the agency in the proceedings below in fact that has been the way the agencies looked at that for forty years and if the court were to change that now that would be a much bigger issue than anything else that we're dealing with in this case all that a or did when they requested a meeting with the agency and all they did in presenting its powerpoint presentation and it's video was to say we want the agency to look at its interpretation as it applies to this new form of technology established that the ultra cat two could be operated by four year olds that all you have to do is go in and question patent and that in fact it really was fail safe anything was not done properly that was verified the safety of the engine and it wouldn't be able to go anywhere in that situation would be covered by the arms as a result your honor it depends because it goes back to the question of whether or not a human being is able to certify that the test was done correctly and that's what this what this comes down to let's say the test itself and said so certify correct incorrect and so i have to do is when the engineer comes on the it depends upon whether or not the person who's pushing the button is the person who is signing the the statement required by agency regulation to say that a test has been properly performed meaning that a test of the system has occurred and it ensures that all of the different safety requirements that are in the sea of ours are met so one person just pushes a button and does nothing more that's one thing what the agency requires is for someone to actually be washing the test as it's done and using their own independent judgment expertise to make sure that that it's our ability and really our province to be able to make that determination as a matter of expertise as just one example that was mentioned in the letter with respect to calibration eventually get our brief there are speed restrictions that apply along different areas of our railroad that's who's testing it must be watching to make sure that the computer is doing the test according to the actual correct parameters that are required by law so that that is not a self test it can't be a self test there has to be a human being who is actually making sure that the test is being done is being done correctly for them or rather it's not just that it's overseen in that way the person who's doing the task is not merely clicking a button but is actually taking other steps that are like hers that it's not likely not a mouse to install computer software you know this instance we're actually talking about manipulating locomotive controls including race and how do you respond to your opponent's argument that your decision here was based on the road test that you never tested on him to your honor going back to the scepter didn't just exactly look at it and say oh this is precisely the same or bound to do exactly the same thing agency noted that it taking consideration of additional evidence and information that had been provided by a r and it said to the extent that that differed from what it already received in  and you say well the new stuff doesn't convince us that our test of that thing was wrong it's entirely different to say we tested a different thing but actually in our ruling in our letter ruling saying that we tested the same thing that seems like an entirely different  circumstances well i think your honor it sufficient that in this case the agency looked at the scepter proceeding which is the closest thing that it had before it where the request for relief from the information that was provided by both parties were so virtually the same with respect to the legal issues that were presented and also the factual issues you can see could additionally depend upon its own expertise and its experience out in the field looking at these systems it's not to say they definitely could it definitely could but the question is what did it do and if you look at this letter what this letter does is it says we already tested this and unless you're taking the position it sounded like you were starting to take it that in fact the scepter proceeding did involve a test of the altar camp to that that just seems to me to be a different issue than one one one reading of the letter is that it says we tested alter caps who  already we reached a determination that if that's the reading of the letter that's on the table are you taking the position that the letter can be sustained yes your honor my position is the letter can be sustained either way and here is the reason the letter that the agency put out yes it probably did but i cannot rob obliviously i cannot completely tell it to the court because it's not in that record what i do know is that the harm in system that was being was so we don't know so the end the answer is you don't know whether the senator proceeding with a little trip to god you would tell correct i want to be clear it's my best understanding from speaking with the folks who deal with this issue day in day out f r a that they believe that the separate proceeding did in fact involve an older cat two and harman which is mentioned in the other makes both the point that i'm trying to make is it's our view that that doesn't actually matter because the agency made clear that it wasn't just making its determination on that basis it took it on the let's make its germination part on that basis but he was making it want to do that are we in the land of wondering whether that's technology that we're talking about here the agency took account of all the evidence that it got and it made all relevant comparisons that it need to make between when it got to this receiving information that it got to the other person so to sort of say in this instance you know well is defended even though you're going out and looking at the altar camp to one side and you may need that when you get more information in the context of as i gather the negotiation the more whatever your further interactions site visit was not to reeducate the issue or was not to revisit the issue the purpose really as i understood it in that was really for my benefit was to give me a concrete illustration of what this is and how it works as i had no idea what this was no further process that it was going to undertake as are you know with respect to going out and doing that kind of visit they got delayed for different reasons several reasons and so forth it's true that it ended up occurring i believe after a or something brief was filed but there was no particular reason for withholding on that basis i think it was requested earlier i don't want to make too much of the site visit because it was really you know as i understand it and it was really for my benefit among some of the other croaks for a lesser purposes but the agency again is not going back to make a different determination o know in the foreseeable future on any of the issues that are raised in this letter and if there were future unfortunate proceeding there may be other factual issues that could get looked at that would go to whether or not our service violation occurs but not as to the specific issue that was addressed in this l you your honor just briefly i think one thing all of us can agree on is that this two page letter is not a model of agency reasoning this is a nestle important issue for the industry and we are in a situation where i think mr perry to his credit conceded that he simply can't say whether the agency was right when they claimed they had already adjudicated this question obviously the agency has the burden of coming up a substantial evidence supporting its reasoning and when their lawyer stands before the court in its there's nothing in the record that suggests  proceeding concerned ultra cat mr kerry said the record cousins pacifically mentioned alter kept me translated it does eventually there's no mention of it at all and the fact that even today having had the benefit of months and months and months to talk with his clients talk to people who did he still to this day cannot say definitively whether or not it involved holter cab i think is sufficient for this court to vacate the ruling to kill or your point about the agency's thin rulemaking record that's absolutely right mr perry spoke about the agenc expertise and intention in all of that but none of that is evident in this letter this court obviously reviews the sufficiency of the agency's action based on the record that the agency created in the record the reasoning set forth in the agency's ruling none of which is present here we believe that this court should vacate the letter as to the point about finality i think mr perry said it well that the agency views this is finding that there's no going back this is their final determination we've already been subject to sanctions proceedings