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Re: You're missing the point
Author: Dr Zarkoff
Date: 07-06-2013 - 19:25
>I think the court reached their conclusion from the first sentence or two of part (a) and maybe parts (c) and (d).
Perhaps.
>Part (a) puts the FRA and Amtrak on the same level to develop the performance metrics.
Only if you're inclined to think negatively, primarily because it doesn't specifically require the FRA and Amtrak to agree.
>I think you're overlooking the purpose of part (d)? The binding arbitration exists in the event Amtrak and the FRA disagree on the performance metrics.
Part (d) is a "negative incentive", and it's NOT limited to FRA/Amtrak. IOW, what it says is "you guys reach agreement within so many days or any participant can invoke arbitration". I completely fail to see how the language in this section specifically limits the seeking of arbitration solely to the FRA and/or Amtrak. It's that phrase "any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator" which governs.
>Other than offering the freight railroads a chance to "consult" with Amtrak and the FRA, section 207 cuts them out of the metric development process altogether.
No, it doesn't, unless, as I mentioned above, you're inclined to think negatively. Couched in the terms of 207, it's not an "offer" but a "specification" [of the statute] that all stakeholders participate.
>Not sure what to make of part (c) because it opens with the all too vague "To the extent practicable" phrase. What if Amtrak and the freight railroads cannot agree on what is and isn't practicable, then what?
The difference between "practicable" and practical" is this: it's practicable to go to the moon (we've done it); it just isn't practical to go there every afternoon on the 5:14 (for one thing the ticket price is prohibitive). What this section says is "use the metrics and standards you guys have developed and don't even think about bamboozling us [the Administration, meaning FRA] about it".
>Section 207 doesn't explicitly give the freight railroads the authority to opt out.
Nor does it explicitly say NO. Where don't they have the complete freedom not to sign an operating contract, regardless of what it's been based on?
Perhaps.
>Part (a) puts the FRA and Amtrak on the same level to develop the performance metrics.
Only if you're inclined to think negatively, primarily because it doesn't specifically require the FRA and Amtrak to agree.
>I think you're overlooking the purpose of part (d)? The binding arbitration exists in the event Amtrak and the FRA disagree on the performance metrics.
Part (d) is a "negative incentive", and it's NOT limited to FRA/Amtrak. IOW, what it says is "you guys reach agreement within so many days or any participant can invoke arbitration". I completely fail to see how the language in this section specifically limits the seeking of arbitration solely to the FRA and/or Amtrak. It's that phrase "any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator" which governs.
>Other than offering the freight railroads a chance to "consult" with Amtrak and the FRA, section 207 cuts them out of the metric development process altogether.
No, it doesn't, unless, as I mentioned above, you're inclined to think negatively. Couched in the terms of 207, it's not an "offer" but a "specification" [of the statute] that all stakeholders participate.
>Not sure what to make of part (c) because it opens with the all too vague "To the extent practicable" phrase. What if Amtrak and the freight railroads cannot agree on what is and isn't practicable, then what?
The difference between "practicable" and practical" is this: it's practicable to go to the moon (we've done it); it just isn't practical to go there every afternoon on the 5:14 (for one thing the ticket price is prohibitive). What this section says is "use the metrics and standards you guys have developed and don't even think about bamboozling us [the Administration, meaning FRA] about it".
>Section 207 doesn't explicitly give the freight railroads the authority to opt out.
Nor does it explicitly say NO. Where don't they have the complete freedom not to sign an operating contract, regardless of what it's been based on?
