163307P.pdf   07/12/2017  Union Pacific Railroad Co.  v.  STB
   U.S. Court of Appeals Case No:  16-3307
                          and No:  16-3504
                          and No:  16-3512
                          and No:  16-3513
                          and No:  16-3514
   Petition for Review of an Order of the Surface Transportation Board   
   [PUBLISHED] [Smith, Chief Judge, Author, with Benton and Shepherd, Circuit 
   Judges] 
   Petition for Review - Surface Transportation Board's Rule. After section 
   207 of the Passenger Rail Investment and Improvement Act of 2008, assigned 
   to the Federal Railway Administration to address on-time performance 
   metrics, was declared unconstitutional, the Surface Transportation Board 
   promulgated a Rule defining on-time performance under section 213(a) to 
   fill the gap created by the invalidation of section 207. In challenge to 
   the Board's rule, the gap- filling rationale does not allow one agency to 
   assume authority expressly delegated to another. Congress did not give the 
   FRA and Board separate authority to develop two potentially conflicting 
   on-time performance rules; section 207 provides source for on-time 
   performance definition; thus Board's interpretation of on-time performance 
   definition in section 213(a) is rejected.