decision which enables railroad and the streets over charge my current millions of dollars adlard to address the points which the court raised and this recent orders transportation board indicating that its membership had been expanded by two new members are the fact that the board has now five members as opposed to suppose congress had passed a new law last week or a month ago setting up the agency rule run by a single don't think it would be moot with congress passed a new law saying this agency will be run by an individual you mean by eleven board member one person explanation from the three members indicating the three different positions and why well they they they have three presidents but their basic position which is before the court was part of the decision as we d understand it and it's tough but whether my point is they've done what we once before we managed to get them to do in the radio television case or it's very probable but it would have come up with a little as i read the three positions at least two of them would have come out even if there were if they thought that was an aberration they still would have to do so it looks like me that the aberration is just a subordinate question it's not a measure that's not the major issue because they were still in disagreeing well  thought of if it's wholly speculative then there's no standing right well i would think to my esteem colleague that speculative would be you also relevant on the other hand they also have a rule that says if the charges are calculated it usually index published by the department of energy on the your moon from challenge the rules for charging one hundred and eighty one million dollars more than their fuel costs on our cultural products order greed without conclusion but it also found that the if the board tells us that it's deadlocked and we have statements that indicate that the board the individual members gave consideration to what was presented to them but at the end of the day they're deadlocked then it's it's unclear to me what we're supposed to do because the board has already told us it's deadlocked and so if we do something and send it back we're sending it back to a deadlock well not that this cases is like radio television in the sense that the board identified something that appeared to be a serious problem which is that even though it had blessed the safe harbor use of an index nonetheless ringback railroads were able to significantly in the in to the tune of hundreds of millions of dollars  over charge for fuel in that the board acknowledged that that was a problem wanted to see whether it was a pervasive problem because fit was and that would you know this necessitate a rule making but that they didn't even kind of get to st base or even do kind of the the the the preliminary work needed because it didn't even answer that question it didn't even answer the question as to whether this was a pervasive problem and if they had they answered the question then that might have spurred them the work harder to try to come up with a solution as  board and raise the issue of the safe harbor but isn't this isn't the standard of review for the denial of a petition to initiate a rule making more deferential then the standard of review that we have before us now i don't think so you are because what we have before you now is the denial of or determination of an advance notice of proposed rulemaking which has a among others that says that the standard of review that we have now is somewhere in between the differential the extremely differential standard that we give to the denial  of petition to initiate a rule making in the standard that's less differential that we give when someone this is challenging an actual rule making that what we have now somewhat in between they're in so if you're saying that this is moot because if you assume that that's correct for the purpose of this question this hypothetical bum then they're not in the same position if they have to file a new petition they're in a worse position right i think as to the standard of review you maybe you made the right or not your are yes any even a part standard or are you what would their position just be look we just want the advance there's already an advance notice of proles rulemaking on the books we just want that to be completed that's different starting all over with a petition for a new u from ground zero with the petition for rule making what we want to do is just to have the a n p r m come to a conclusion it's already started there's already comments on the books those comments should be taken into have been taken into account  so there's a difference between your point that they can always file a petition for rule making and their point which is that we want what's already been done to be brought to a close there is that defense out of it i'm not it's that much of a difference you know they basically want board d to rule on the question of the safe harbor whether or not it should propose the repeal of safe harbor not i think you can get answers that question either reasonableness of the bourses vision also applies in terms of the question of redress ability here the league is still to show that the board's decision not to propose the repeal of the safe harbor would have changed anything the three member consider the abberation issue would have changed any of the three board members minds and that was really his burden but even putting aside the fact that it doesn't carry that burden if you just look at what three board members said there's no reason to think that any one of them would have changed their mind if they had considered the abberation issue but but but isn't it significant that none of the three said one way or the other whether they believe that what happened in the cargill case was an aberration or not though your honor because if you look at what they did if you look at the statements of numbers over minutes you these are two members who came on that that was likely although he didn't want to actually resolve that issue so there's no reason to think that either of those two numbers would have been persuaded to change their mind by a ruling on the abberation issue and the league was and explain why either one of them would have changed their minds so for that reason we believe that it would be speculative to think that they mean and would cause any different result in this case well i guess i find it interesting that that would be the position that this agency would take mean if if if an agency is supposed to undertake rational and a review of things in you had imposed a rule that seemed to not u ltimately result in a reasonable rate in the end the board at least in one instance and the board said well if this is is the case consistently this is a big problem that we need to do something about in the board just sticks its head in the sand and refuses to even acknowledge whether it's a big problem make a finding one way or the other whether it's a big problem and then doesn't do anything says it can't really agree on a course of action to take hasn't the board just kind of at least fundamentally failed can bleich and the agency one o one because it's it's identified something that's a problem it says we want to try to figure out how widespread it is and then just like ducks the whole question and never even answers the question is whether this is a widespread problem or not no you're out of because as i said to the board members thought that rules on which the safe harbor was the case may have been in that it were invalid o likely to be invalid and so whether or not there was a widespread problem in terms of the aberration in terms of the cargo result the kind of cargo phenomena that would simply be irrelevant to what those two members preferred to do so that's that's one issue that's one problem the other thing is that even if there were even if the cargo result was not an aberration or other factors that would go into whether or not the board would repeal the safe harbor and those are things that the board asked about in the advance notice for example in the advance notice among sensitive asked parties to comment on was whether or not there were problems with the safe harbor that were outweighed by the benefits and i understand all that but i guess my point is is that they might do something that might save people millions of dollars and even if it's not specifically repealing the safe harbor that's giving them some relief to their injury which means redress ability for example your honor if one were overman you prevailed in two thousand and seven fuel surcharge decision would have been reversed and railroads would be able to charge rate based seal surcharges so it's not the case it's not clear why addressing the abberation she would have any effect on his preferred outcome and then for a few weeks was very similar very much along the same lines he was very concerned about the validity of the two thousand and seven to a surcharge decision so again it's not clear why the aberration she would affect how he would want to come out and again it was the least burden to show that it was likely that the abberation issue resolutions abberation issue would have changed the outcome of the bourse assertion and i'm not saying how does that square with with what we've done in what we did in radio television in other cases where we granted where we set cases back where there was a denial of a petition to  institute a rule making we don't we don't say that we're only doing this because we believe that  not an aberration a cargo result was not an aberration it was not an aberration and but we also assume that they would do with respect to either getting rid of the safe harbor or amending it in some way to their benefit i guess i guess what i'm saying is is  were making the burden on them hired and i think it should be for article three purposes that they somehow have to prove as part of the article three analysis that that that they the leak to show that there would have been a different outcome if war had addressed the ever asian issue i think that's their burd so you think that we should hold that where an agency doesn't seek to identify something that's a problem but then doesn't seek to determine the extent of the problem in just says you know we can agree on one on dealing with this we should  find that it makes it makes no difference or that the petitioner has to show that that if they had realized the extent of the problem they would have done something differently i don't think i worded that very well but but that but that determination of the extent of the problem kind of doesn't necessarily have any impact on whether they would have acted differently in trying to resolve the issue then i think it depends on the case and usually for example on radio television where an agency does identify a definite problem and yes the agency has to  meaningfully address why it either thinks it is a problem or is not a problem didn't they do that in cargill i mean you know we look at the language in cargill and there's a whole bunch of language in there about you know  if this is indeed not a not an aberration then we've got a problem right now that was a question is it an aberration but the issue here is that two of the board members thought the two thousand and seven steel surcharge rules were were validly promulgated and if that you were to prevail then the whole aberration issue goes away it's not it doesn't matter because that's a fact around issue and resolving that issue isn't going to affect how one views that legal question of the validity of the two thousand and seven till sir char what's the fact issue again because i thought the distinction that you were wrong in your brief maybe i'm misunderstanding argument i thought the distinction that you are relying on was that in radio television the agency operated on the premise that there was a problem and this television part of what fueled the court's decision including its decision that it made sense to send it back was that there it was operating at the predicate that the agency had already said there was something to be fixed d radio television set up hurt's off of it and it's a particularly high burden to explain why it was not going what it was not going to do something about that problem why and here again the board did nothing along those lines  and the resolution of that issue is not plain to affect someone who thinks that the fuel surcharge rules were inappropriate to begin with which you say to be to board members had already  at least indicated in their right one day certainly had one certainly had in the other indicated seriously sounds along those lines serious concerns doesn't mean though that they believe that the decision was wrong i guess my here's my my my bottom line here is that the cargill decision says that if this isn't an sion then we've got a problem in that's why you have the advance notice of proposed rule making the you agree with that it said yes if there's a widespread problem then we need to think about whether or not we're going to do something what we may want to do about it because even if it were widespread there are other factors that may come into play as to why the board may want to even modify the safe harbor or retain its their number of factors that were going to come into play but yet there was no undertaking to determine whether this was a widespread phenomenon agree no finding  ok and actually my colleague don't have additional questions decisions of the corps require the board to enforce its own rules and the fact that it is to commissioners must givings about their own rules totally irrelevant are our case comes they are engaging in an on lawful practice the orks rules its decisions its regulations say that a charge that includes a profit is on reasonable and on lawful how they