                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 16-3307
                       ___________________________

                        Union Pacific Railroad Company

                            lllllllllllllllllllllPetitioner

                       Association of American Railroads

                            lllllllllllllllllllllIntervenor

                                          v.

            Surface Transportation Board; United States of America

                           lllllllllllllllllllllRespondents

National Railroad Passenger Corporation; SMART-Transportation Division-New
 York State Legislative Board; National Association of Railroad Passengers; All
Aboard Indiana; All Aboard Ohio; All Aboard Wisconsin; Friends of the Cardinal;
Environmental Law and Policy Center; Michigan Association of Rail Passengers,
    Inc; Midwest High Speed Rail Association; Southern Rail Commission;
                         Virginians for High Speed Rail

                            lllllllllllllllllllllIntervenors

                            ------------------------------

  Chamber of Commerce of the United States of America; Professor Neomi Rao

                  lllllllllllllllllllllAmici on Behalf of Petitioner

                      United States Conference of Mayors

                lllllllllllllllllllllAmicus on Behalf of Respondent
                       ___________________________

                               No. 16-3504
                       ___________________________

                       Association of American Railroads

                            lllllllllllllllllllllPetitioner

                                          v.

            Surface Transportation Board; United States of America

                           lllllllllllllllllllllRespondents

National Railroad Passenger Corporation; SMART-Transportation Division-New
 York State Legislative Board; National Association of Railroad Passengers; All
Aboard Indiana; All Aboard Ohio; All Aboard Wisconsin; Friends of the Cardinal;
Environmental Law and Policy Center; Michigan Association of Rail Passengers,
    Inc; Midwest High Speed Rail Association; Southern Rail Commission;
                         Virginians for High Speed Rail

                            lllllllllllllllllllllIntervenors

                            ------------------------------

                      United States Conference of Mayors

                lllllllllllllllllllllAmicus on Behalf of Respondent

  Chamber of Commerce of the United States of America; Professor Neomi Rao

                  lllllllllllllllllllllAmici on Behalf of Petitioner




                                          -2-
                       ___________________________

                               No. 16-3512
                       ___________________________

                               CSX Transportation

                            lllllllllllllllllllllPetitioner

                      Association of American Railroads

                            lllllllllllllllllllllIntervenor

                                          v.

            Surface Transportation Board; United States of America

                           lllllllllllllllllllllRespondents

National Railroad Passenger Corporation; SMART-Transportation Division-New
 York State Legislative Board; National Association of Railroad Passengers; All
Aboard Indiana; All Aboard Ohio; All Aboard Wisconsin; Friends of the Cardinal;
Environmental Law and Policy Center; Michigan Association of Rail Passengers,
    Inc; Midwest High Speed Rail Association; Southern Rail Commission;
                         Virginians for High Speed Rail

                           lllllllllllllllllllllIntervenors

                            ------------------------------

             Chamber of Commerce of the United States of America

                 lllllllllllllllllllllAmicus on Behalf of Petitioner

                      United States Conference of Mayors

                lllllllllllllllllllllAmicus on Behalf of Respondent

                                         -3-
                              Professor Neomi Rao

                 lllllllllllllllllllllAmicus on Behalf of Petitioner
                         ___________________________

                               No. 16-3513
                       ___________________________

                     Norfolk Southern Railway Company

                            lllllllllllllllllllllPetitioner

                      Association of American Railroads

                            lllllllllllllllllllllIntervenor

                                          v.

            Surface Transportation Board; United States of America

                           lllllllllllllllllllllRespondents

National Railroad Passenger Corporation; SMART-Transportation Division-New
 York State Legislative Board; National Association of Railroad Passengers; All
Aboard Indiana; All Aboard Ohio; All Aboard Wisconsin; Friends of the Cardinal;
Environmental Law and Policy Center; Michigan Association of Rail Passengers,
    Inc; Midwest High Speed Rail Association; Southern Rail Commission;
                         Virginians for High Speed Rail

                           lllllllllllllllllllllIntervenors

                            ------------------------------

             Chamber of Commerce of the United States of America

                 lllllllllllllllllllllAmicus on Behalf of Petitioner

                                         -4-
                      United States Conference of Mayors

                lllllllllllllllllllllAmicus on Behalf of Respondent

                              Professor Neomi Rao

                 lllllllllllllllllllllAmicus on Behalf of Petitioner
                         ___________________________

                               No. 16-3514
                       ___________________________

Canadian National Railway Company; Illinois Central Railroad Company; Grand
                      Trunk Western Railroad Company

                            lllllllllllllllllllllPetitioners

                      Association of American Railroads

                            lllllllllllllllllllllIntervenor

                                          v.

            Surface Transportation Board; United States of America

                           lllllllllllllllllllllRespondents

National Railroad Passenger Corporation; SMART-Transportation Division-New
 York State Legislative Board; National Association of Railroad Passengers; All
Aboard Indiana; All Aboard Ohio; All Aboard Wisconsin; Friends of the Cardinal;
Environmental Law and Policy Center; Michigan Association of Rail Passengers,
    Inc; Midwest High Speed Rail Association; Southern Rail Commission;
                         Virginians for High Speed Rail

                           lllllllllllllllllllllIntervenors



                                          -5-
                             ------------------------------

             Chamber of Commerce of the United States of America

                  lllllllllllllllllllllAmicus on Behalf of Petitioner

                        United States Conference of Mayors

                 lllllllllllllllllllllAmicus on Behalf of Respondent

                               Professor Neomi Rao

                  lllllllllllllllllllllAmicus on Behalf of Petitioner
                                       ____________

                      Petition for Review of an Order of the
                           Surface Transportation Board
                                  ____________

                           Submitted: February 8, 2017
                              Filed: July 12, 2017
                                ____________

Before SMITH,1 BENTON and SHEPHERD, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

      When Congress expressly delegates rulemaking authority in a regulatory sphere
to one agency, and that delegation is declared unconstitutional, may a different
agency provide regulatory guidance in the same sphere on its own initiative? The
Surface Transportation Board (“Board”) said yes—and on that basis it promulgated


      1
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.

                                          -6-
a rule defining “on-time performance” under the Passenger Rail Investment and
Improvement Act of 2008 after the Act’s delegation to another agency was
invalidated. Now the Board argues that the Act itself allows the Board to promulgate
on-time performance standards. Because the Board’s interpretation contradicts the
Act’s plain language, we grant these consolidated petitions and hold that the Board
exceeded its authority.

                                     I. Background
                                A. Statutory Background
       The National Railroad Passenger Corporation (“Amtrak”) and freight railroad
companies share the nation’s railways. Congress created Amtrak as a passenger
railroad in 1970. Dep’t of Transp. v. Assoc. of Am. R.Rs., 135 S. Ct. 1225, 1228
(2015). Amtrak relieved freight railroads of their common-carrier obligation to offer
passenger service, and in exchange it received the right to use freight-railroad tracks
and facilities at rates set by agreement or by the Interstate Commerce Commission,
a now-defunct agency. Id. at 1229. Congress later granted Amtrak a statutory
preference over freight railroads on shared track. Id. But in 2008, the Department of
Transportation’s Inspector General reported that this preference right was weak.
Office of Inspector Gen., Fed. R.R. Admin., CR-2008-076, Root Causes of Amtrak
Train Delays 4 (2008). He noted that freight railroads could “adjust their dispatching
practices” to give their own trains an advantage over Amtrak. Id.

       To address this situation, Congress enacted the Passenger Rail Investment and
Improvement Act of 2008, Pub. L. No. 110-432, 122 Stat. 4907 (PRIIA). Two
sections of the Act are relevant here. The first, § 207(a), instructs the Federal Railroad
Administration (FRA) and Amtrak, jointly and in consultation with other groups, to
“develop new or improve existing metrics and minimum standards for measuring the
performance and service quality of intercity passenger train operations, including cost
recovery, on-time performance and minutes of delay, ridership, on-board services,
stations, facilities, equipment, and other services.” Id. § 207(a) (codified at 49 U.S.C.

                                           -7-
§ 24101 (note)). These metrics must include “measures of on-time performance and
delays incurred by intercity passenger trains on the rail lines of each rail carrier.” Id.

       The metrics and standards have at least four uses: (1) they are the basis for
quarterly reports published by the FRA, id. § 207(b); (2) they are the basis for an
annual evaluation by Amtrak, id. § 210(a) (codified at 49 U.S.C. § 24710); (3) they
are a benchmark for a performance improvement plan to be developed by Amtrak, id.;
and (4) at least some of the metrics and standards trigger Board investigations into
freight railroads’ compliance with Amtrak’s statutory preference right, id. § 213(a)
(codified at 49 U.S.C. § 24308(f)).

       The second relevant section is § 213(a). Congress added § 213(a) to 49 U.S.C.
§ 24308, the Code provision containing Amtrak’s statutory preference right. See 122
Stat. at 4925. Section 213(a) authorizes, and sometimes requires, the Board to
investigate when an Amtrak train fails to meet certain performance standards. PRIIA
§ 213(a). If the Board determines that the failure is attributable to the host railroad’s
failure to honor Amtrak’s preference right, then the Board may award damages and
other relief. Id. An investigation is authorized

      [i]f the on-time performance of any intercity passenger train averages
      less than 80 percent for any 2 consecutive calendar quarters, or the
      service quality of intercity passenger train operations for which
      minimum standards are established under section 207 of the Passenger
      Rail Investment and Improvement Act of 2008 fails to meet those
      standards for 2 consecutive calendar quarters . . . .

Id. This case addresses how “on-time performance” is defined for purposes of
§ 213(a).




                                           -8-
                           B. Procedural Background
      This case developed from agency proceedings and court litigation addressing
§§ 207 and 213.

          1. The § 207 On-Time Performance Rule and Ensuing Litigation.
       In May 2010, the FRA and Amtrak issued the § 207 metrics and standards. See
Metrics and Standards for Intercity Passenger Rail Service under Section 207 of the
Passenger Rail Investment and Improvement Act of 2008, 75 Fed. Reg. 26,839 (May
12, 2010). These included a metric for on-time performance. Fed. R.R. Admin.,
Metrics and Standards for Intercity Passenger Rail Service 26 (2010),
https://www.fra.dot.gov/eLib/Details/L02875.

        In 2011, the Association of American Railroads sued to have § 207 declared
unconstitutional on the grounds that it (1) unlawfully delegated rule-making authority
to a private entity in violation of the nondelegation doctrine and the separation-of-
powers principle, and (2) unlawfully vested government power in an interested
private party in violation of the Due Process Clause. Assoc. of Am. R.Rs., 135 S. Ct.
at 1230. The district court rejected both claims on summary judgment, but the D.C.
Circuit reversed on the nondelegation and separation-of-powers claim, concluding
that Amtrak was a private entity and therefore could not be granted regulatory power.
Id. at 1230–31. In 2015, the Supreme Court vacated the D.C. Circuit’s judgment and
remanded, holding that for purposes of the constitutional issues at play, Amtrak was
“a governmental entity, not a private one.” Id. at 1233.

       On remand in April 2016, the D.C. Circuit found § 207 unconstitutional on a
different ground. It concluded that § 207 “violates the Fifth Amendment’s Due
Process Clause by authorizing an economically self-interested actor to regulate its
competitors.” Assoc. of Am. R.Rs. v. Dep’t of Transp., 821 F.3d 19, 23 (D.C. Cir.
2016). The government did not seek Supreme Court review. In March 2017, on
remand from the D.C. Circuit, the district court entered judgment for the Association

                                         -9-
of American Railroads.2 Consequently, the FRA and Amtrak lacked authority to
establish on-time performance rules under § 207 of the PRIIA. The 2010 on-time
performance metric is therefore currently unenforceable.

                     2. The § 213(a) On-Time Performance Rule
       While the D.C. Circuit litigation was proceeding, the Board also addressed the
question of on-time performance. In December 2014, while the FRA’s on-time
performance rule was unenforceable and awaiting Supreme Court review, the Board
considered Amtrak complaints about on-time performance on the “Illini/Saluki”
service between Chicago and Carbondale, Illinois. Nat’l R.R. Passenger Corp.
Section 213 Investigation of Substandard Performance on Rail Lines of Canadian
Nat’l Ry. Co., No. NOR 42134, 2014 WL 7236883 (S.T.B. Dec. 19, 2014). The Board
concluded that the lack of an enforceable on-time performance standard under § 207
did not preclude on-time performance investigations under § 213(a). Id. at *2. The
Board determined that it possessed authority to “initiate investigations of on-time
performance problems under Section 213 of PRIIA because the . . . on-time
performance trigger in Section 213 is severable from the mechanism for promulgating
standards of ‘on-time performance’ under Section 207.” Id. at *2. The Board
acknowledged that it did not have its own definition of on-time performance and thus
authorized itself to “construe” that term in § 213(a). Id. at *1. It then requested the
parties’ input in giving meaning to § 213(a)’s on-time performance metric. Id. at *8.

        The Association of American Railroads and others asked the Board to define
on-time performance through a rulemaking proceeding rather than as part of the
Illini/Saluki adjudication proceeding. In May 2015, the Board obliged. See On-Time
Performance Under Section 213 of the Passenger Rail Investment and Improvement
Act of 2008, 80 Fed. Reg. 28,928 (May 20, 2015). In December 2015, the Board


         2
             The case is now back on appeal to the D.C. Circuit. See No. 17-5123 (D.C.
Cir.).

                                           -10-
posted its proposed rule for public comment. See On-Time Performance Under
Section 213 of the Passenger Rail Investment and Improvement Act of 2008, 80 Fed.
Reg. 80,737 (Dec. 28, 2015). And in August 2016, the Board published a final on-
time performance rule. See On-Time Performance Under Section 213 of the Passenger
Rail Investment and Improvement Act of 2008, 81 Fed. Reg. 51,343 (Aug. 4, 2016).

       The instant petitions for review concern the August 2016 final rule (“Final
Rule”). Various individual railroads and the Association of American Railroads
(together, the “Freight Railroads”) challenge the Final Rule’s content and the Board’s
authority to issue it.3 The Board justified the Final Rule on the basis of necessity: “the
only way for the Board now to fulfill its responsibilities under [§ 213] is to define
[on-time performance] as a threshold for such investigations.” Id. at 51,345. In other
words, “the invalidation of Section 207 of PRIIA leaves a gap that the Board has the
delegated authority to fill by virtue of its authority to adjudicate complaints brought
by Amtrak” under § 213(a). Id. “Any other result,” said the Board, “would gut the
remedial scheme, a result that Congress clearly did not intend.” Id. Thus, the Board
claimed authority to “fill the definitional gap exposed by the invalidation of a
statutory provision.” Id. at n.3.

                                      II. Discussion
        Agency action taken without statutory authority must be set aside. 5 U.S.C.
§ 706(2)(C). “An agency’s promulgation of rules without valid statutory authority
implicates core notions of the separation of powers, and we are required by Congress
to set these regulations aside.” U.S. ex rel. O’Keefe v. McDonnell Douglas Corp., 132
F.3d 1252, 1257 (8th Cir. 1998). Indeed, “[i]t is axiomatic that an administrative

      3
       As to content, the Final Rule defines on-time performance as arriving at or
departing from a given station 15 minutes after the scheduled time based on an “all
stations” approach. Id. at 51,343; see also 49 C.F.R. § 1040.2. Because we decide this
appeal on the basis of the Board’s authority, we do not address the Freight Railroads’
challenges to the Final Rule’s content.

                                          -11-
agency’s power to promulgate legislative regulations is limited to the authority
delegated by Congress.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988). The Board advances two arguments for its authority to promulgate an on-time
performance rule under § 213(a). The first is situational; the second is textual.

                                     A. Gap-Filling
        The Final Rule expressly bases its authority on the need to fill the vacuum
created by the invalidation of the on-time performance rule announced by the FRA
and Amtrak under § 207. The Final Rule invokes the Board’s “implicit authority to
fill a gap exposed by the . . . invalidation of a portion of a statute.” 81 Fed. Reg. at
51,345. If the Board is to investigate alleged violations of Amtrak’s statutory
preference right, the argument goes, then the Board must have implied authority to
develop an on-time performance rule when the § 207 rule is invalidated.

       The Final Rule cites two agency gap-filling cases as precedent for its assertion
of authority. Those cases affirmed the Social Security Commissioner’s reassignment
of some retired coal miners to new benefits providers under the Coal Act after the
Supreme Court invalidated certain prior assignments. See Sidney Coal Co. v. Soc. Sec.
Admin., 427 F.3d 336, 346 (6th Cir. 2005); Pittston Co. v. United States, 368 F.3d
385, 392, 401–04 (4th Cir. 2004). But in those cases, unlike this one, Congress had
already directed the Commissioner to make assignments in the first place. See Pittston
Co., 368 F.3d at 399. And the reassignments did not “violate[] or disturb[] the
structure of the Coal Act,” or “change the wording of the statute.” Id. at 404. Here,
on the other hand, the Final Rule acknowledges that Congress initially charged a
different agency with developing the relevant rule.

      We consider Bayou Lawn & Landscape Services v. Secretary of Labor, 713
F.3d 1080 (11th Cir. 2013), to be the more analogous precedent. There, Congress had
delegated limited rulemaking authority to the Department of Labor for a program
governing agricultural workers but had not done so for a similar program governing

                                         -12-
non-agricultural workers. Id. at 1083. The Department nonetheless issued rules for
the non-agricultural program. Id. The Eleventh Circuit affirmed an injunction against
these rules as exceeding the Department’s authority. Id. at 1084–85. “The absence of
a delegation of rulemaking authority to [the Department] over the non-agricultural
H–2B program in the presence of a specific delegation to it of rulemaking authority
over the agricultural worker H–2A program” persuaded the court that “Congress
knew what it was doing when it crafted these sections.” Id. at 1084. In response to the
Department’s appeal to the “text, structure and object” of the statute, the court noted
that Congress had expressly delegated the authority at issue to a different agency. Id.
“[W]e would be hard-pressed,” said the court, “to locate [rule-making authority] in
one agency where it had been specifically and expressly delegated by Congress to a
different agency.” Id. at 1085. So too in this case. Congress’s express delegation to
the FRA and Amtrak in § 207(a) overcomes any implied situational authority claimed
by the Board under § 213(a). In sum, the gap-filling rationale does not allow one
agency to assume the authority expressly delegated to another.

       The Board also casts its gap-filling rationale as an application of the principle
expressed in United States v. Booker that courts must “refrain from invalidating more
of the statute than is necessary.” 543 U.S. 220, 258 (2005) (quoting Regan v. Time,
Inc., 468 U.S. 641, 652 (1984) (plurality opinion)). Booker retained portions of the
Sentencing Reform Act that were constitutionally valid, capable of functioning
independently, and consistent with the congressional objectives behind the Act. Id.
at 258–59. The Board’s reliance on Booker, however, fails. Saying that § 213(a) of
the PRIIA may function independent of § 207 assumes the very issue in dispute: that
§ 213(a) provides independent authority for developing an on-time performance rule.
If § 213(a) does not provide this authority, then it cannot function independent of
§ 207. This case therefore depends on the text of § 213(a).




                                         -13-
                               B. Textual Authority
       Before reaching the merits of the Board’s textual argument, we must address
whether we may even consider it, and, if so, whether the Board’s interpretation is
entitled to deference.

                                    1. New Basis?
       In this review proceeding, the Board has moved away from the gap-filling
rationale it asserted when adopting the Final Rule. It now focuses on the text of
§ 213(a), arguing that the term “on-time performance” in § 213(a) does not mean the
on-time performance metric entrusted to the FRA and Amtrak under § 207(a), but
rather a different metric entrusted to the Board itself. In response, the Freight
Railroads point out that we may uphold the Final Rule only on the basis given when
it was adopted. See Michigan v. Envtl. Prot. Agency, 135 S. Ct. 2699, 2710 (2015).

       The record reflects that in adopting the Final Rule, the Board principally relied
on its gap-filling rationale rather than a textual analysis of § 213(a). The Final Rule
repeatedly invokes situational necessity and demonstrates that this rationale was not
merely an alternative explanation, as the Board now suggests. We note, however, that
the Final Rule does cite the Illini/Saluki decision, and the Illini/Saluki decision does
invoke the “plain language of Section 213” to support the conclusion that § 213(a)’s
on-time performance standard is separate from § 207(a)’s. Nat’l R.R. Passenger
Corp., 2014 WL 7236883, at *5; see Gatewood v. Outlaw, 560 F.3d 843, 847 (8th
Cir. 2009) (noting that it is sometimes appropriate to discern the reasons for a final
rule from prior statements reflecting a consistent policy). We will therefore give the
Board the benefit of the doubt and consider its textual argument on the merits.




                                         -14-
                                  2. Chevron Deference
       The Board argues that § 213(a) calls for Chevron deference.4 We disagree.
“[F]or Chevron deference to apply, the agency must have received congressional
authority to determine the particular matter at issue in the particular manner adopted.”
City of Arlington v. F.C.C., 133 S. Ct. 1863, 1874 (2013). As we will see below, the
Board received no such authority here. Moreover, even if Chevron deference applied,
it would not actually afford the Board any deference—Congress’s intent in § 213(a)
is clear, so “that is the end of the matter.” Id. at 1868.

                                     3. Merits
      We turn now to the text at issue:

      If the on-time performance of any intercity passenger train averages less
      than 80 percent for any 2 consecutive calendar quarters, or the service
      quality of intercity passenger train operations for which minimum
      standards are established under section 207 of the Passenger Rail
      Investment and Improvement Act of 2008 fails to meet those standards
      for 2 consecutive calendar quarters, the Surface Transportation Board
      (referred to in this section as the ‘Board’) may initiate an investigation,
      or upon the filing of a complaint by Amtrak, an intercity passenger rail
      operator, a host freight railroad over which Amtrak operates, or an entity
      for which Amtrak operates intercity passenger rail service, the Board
      shall initiate such an investigation . . . .

PRIIA § 213(a). The Board’s argument is simple: this text creates two separate
triggers for Board investigations. The first is the failure to achieve on-time
performance at least 80 percent of the time, and the second is the failure to meet
“service quality” standards as established under § 207. Because the § 207 metrics and
standards are mentioned only in connection with the second trigger, the on-time



      4
          See Chevron, U.S.A. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984).

                                         -15-
performance trigger is separate, and therefore the Board may develop its own on-time
performance metric apart from § 207.

      Reading § 213(a) in isolation, the Board’s interpretation is reasonable. The
“established under section 207” reference modifies “service quality,” not “on-time
performance.” And Congress knew how to tie § 213(a) to § 207, so its failure to
expressly do so for “on-time performance” might suggest that it chose to leave the
§ 213(a) definition of on-time performance in the Board’s hands. See Loughrin v.
United States, 134 S. Ct. 2384, 2390 (2014) (inclusion of particular language in one
section but not another raises a presumption that Congress “intended a difference in
meaning”). But discrete grammar rules and canons of construction are “not an
absolute and can assuredly be overcome by other indicia of meaning.” Lockhart v.
United States, 136 S. Ct. 958, 963 (2016) (quoting Barnhart v. Thomas, 540 U.S. 20,
26 (2003)). And such rules “need not be applied ‘in a mechanical way where it would
require accepting “unlikely premises.”’” Id. at 965 (quoting Paroline v. United States,
134 S. Ct. 1710, 1721 (2014)). Importantly, “text and context” may supply even an
“awkwardly phrased” statute with a “straightforward reading.” Id. at 962.

       The Board’s interpretation fades in the light of the full text and context. First,
despite § 213(a)’s heading—“Investigation of Substandard Performance”—“on-time
performance” is not a defined term in the statute. In the absence of a statutory
definition, we will give a term its ordinary dictionary meaning. Taniguchi v. Kan Pac.
Saipan, Ltd., 132 S. Ct. 1997, 2002 (2012). But “on-time performance” is a term of
art. See F.A.A. v. Cooper, 566 U.S. 284, 291–92 (2012) (general dictionary definition
not used for terms of art). We therefore look to context for guidance. See Davis v.
Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989). The only place in the PRIIA
where on-time performance is described and given an explicit source is § 207(a),
which instructs the FRA and Amtrak to “develop new or improve existing metrics and
minimum standards for measuring the performance and service quality of intercity
passenger train operations, including cost recovery, on-time performance and minutes

                                          -16-
of delay.” PRIIA § 207(a). Section 207(a), then, is the natural source for the meaning
of “on-time performance” in § 213(a). This follows, too, from the principle that a term
is presumed to have the same meaning throughout the same statute. See Mohamad v.
Palestinian Auth., 132 S. Ct. 1702, 1708 (2012). This presumption of course “yields
readily to indications that the same phrase used in different parts of the same statute
means different things.” Barber v. Thomas, 560 U.S. 474, 484 (2010). But there are
no such indications in the PRIIA.

       Second, Congress likely did not give the FRA/Amtrak and the Board separate
authority to develop two potentially conflicting on-time performance rules. See
Lockhart, 136 S. Ct. at 963 (interpretation should not rest on an unlikely premise).
The § 207 on-time-performance metric was, to the extent practicable, to be
incorporated into Amtrak’s contracts with host railroads. PRIIA § 207(c). If the Board
could separately adopt its own metric for investigations under § 213(a), then host
railroads could be investigated under a stricter § 213(a) metric even while complying
with the § 207 metric embedded in their contracts. The Board responds that there
were never actually two standards, because the § 207 rule was invalidated. Yet we
focus on what Congress intended when it spoke. It likely did not intend to establish
potentially competing standards.

      A common-sense reading of how on-time performance functions in the PRIIA
reveals that the FRA and Amtrak develop metrics and standards, including for on-
time performance, and then the FRA publishes quarterly reports showing Amtrak’s
performance under the metrics. If Amtrak’s on-time performance is worse than
80 percent for two consecutive quarters, then the Board may investigate. In any event,
on-time performance in § 213(a) means on-time performance as developed by the
FRA and Amtrak under § 207(a). We therefore reject the Board’s interpretation of
§ 213(a).




                                         -17-
                                 III. Conclusion
      Accordingly, we grant the petitions and vacate the Board’s Final Rule defining
on-time performance.

                      ______________________________




                                       -18-
