no doubt divine from the papers before the scores are rises against a backdrop of a multi year effort by rate payers and other affected entities to that really going back to the two thousand and fifteen of the commission season to try to grasp hold of this annual rate making process and to impose some what they regard as fairness and regularity to the to this court three elements of the district courts disposition on the matter too with these or challenges a p a challenges to the coastguards determination about staffing levels staffing levels drive costs very heavily in the coastguards formulation this is been referred to in the papers as the peak staffing because current post and  issues related to return ssion attrition recruitment which also form the basis of the coast guard's determination of staffing levels these these two issues are somewhat related they feed on each other we also bring before the court an inadequacy of remedy issue that was raised by the district court's disposition of the weighting factor here in the district court found this is a despite fairly loose interest we believe finger pointing by us to the problem an element of the rate calculation which resulted in an an a tic problem with the five rule the earth medic problem was that because the invoice to the rate is includes a time it issued its remedy order the two thousand and seventeen rates were in effect in the two thousand and eighteen rates had been proposed right now are operating under two thousand and nineteen degrees so to to come back directly to your question what we have proposed is simply that given the effect of the weighting factor which was essentially to confiscate money from the calculating what the rate should have that the and with you know what they would have to deal in order to determine the amount i need to be credited i understand the question you're on it's it's an re you divide out whatever the the waiting factor error was and you revise it was invoice if it if it's done by credit to rate payers or it's done by a refund is not particularly important to us but if it's if nothing is done if nothing is done then we have a situation where we are certainly in the neighborhood of twelve dollars to thirteen million dollars was extracted from the rate payers good in a way says for the two thousand and sixteen period and by the way that period was attenuated it ran all the way in to the fall of two thousand and seventeen at any invoices during that time when the two thousand and sixteen rig is in effect should be revised to make that arithmetic correction to correct the windfall the money is gone from my clients and them to do this because they're good citizens but i don't think at this stage we're going to see that happen and that doesn't pose a retroactivity problem i don't think it does i mean i think the the the prohibition against retroactive rate making does not apply in a situation where there is an effort to correct an obvious arithmetic error where we're not saying that the two thousand and sixteen rates now have to be reestablish reapplied we're saying that the the coast guard enabled a windfall that it should not have and that we know exactly what it is we can calculate it pretty accurately and disruption prong of allied signal to decide not to vacate i suppose that if the remainder is clear enough and i think the district court thought it was that the coast guard was going to do something disposition of our a p a challenges and addresses directly without moving the whole rule into as of now i'm not i'm not sure that it makes any difference since the rate making occurs annually right here you know each year rate is put in place and that rate would probably expire before a judicial review runs out over the right i mean in most instances right between the district  court if there's appeal so would you anticipate this happening you know each year it seems historically one side or the other is unhappy with the rate center we have a system where we have these appeals and and then the agency has to continually a relatively recent phenomenon that these rates are being challenged what's happened is there's been substantial increases in the cost that has motivated the need for litigation i certainly would expect this to occur but you're correct invoice reflects a waiting factor multiplier that was not contemplated by the rule that so and so i mean it is to us it seems glaringly obvious that the goes gertrude considered seem that way to the district court i think but the coast guard has that authority because guards also the courts have the authority to remain and in a way that requires an effective remedy the getting to the initial part of your question hypothetically the rate here has five hundred dollars we've we've calculus is a refund or or a credit we the credit to a scene to address a convenience issue for the time what we are trying to avoid that when we do not think the cost base rate setting system permit is for that money just to be something for that money just to be lost and is that when the pilot  indeed our credit proposal is simply that the rate payers and by the way one of the things we're trying to do is to ensure that the people receiving to provide an effective room what happened here is to do was to provide an effective remedy that the district court sent this back to the district court said it's best to leave that to the agency in the st instance to resolve this then what would happen is if you think its one thousand and ten dollars to fifteen million dollars that was shifted over to the pilots that shouldn't have been shifted over to the pilots then what you would see as the appropriate way to resolve this into by way of credit would be in the future there would be ten to fifteen million dollars that would otherwise go to the pilots that would be that would not be charged to the shippers that's right or you just make a record in the future so it would be a shift back that's correct just the tempora district court found that the coastguards rate methodology adopted in twenty six dollars teams generally sound the coast guard here did not face based on the district court's finding that two aspects of the rule were not sufficiently justified they did not face what my friend on the other side has characterized as an arithmetic problem at the very least it's an algebra problem and i hate to go to math quickly but there we are it this is not a simple problem that could be quickly remedy that is as general pointed out early in the argument the correct weight would have to be found in order to do these adjustments to the the billing invoice as as has been suggested and then is not a simple matter like it partly or why not why not the st thing the district court found was that using the canadian pilot base rate with a ten percent increment have not been sufficiently justified to account for the difference between the canadians being government employees and pilots not being so rates as high as thirty five percent had been recommended or suggested in some of the comments t received so it's possible that in fixing that problem if they had to go back that rate might go up and it's hard to it's impossible to see how the offsetting effect of accounting for the way factors and this problem how that would dollars so i think what the district court correctly recognized here is that there are a variety of ways in which the agency could decide to implement that sort of a correction it might be perhaps overly onerous to do it in a single year and so you might phase that in over three years or something right and because there is an annual rate making and because there's a federal advisory group that gives the agency input that it has to take account of and because it it's not clear that you are out five hundred dollars and i do disagree with my friend of the other side suggestion that no services were provided for those instances the transportation took place the pilot was there brewery perspective on that issue it's not as glaringly obvious as it as it's been portrayed the coast guard change the way it calculated based rates in two thousand and sixteen historically had been applying waiting factors for many years and in fact historically there had been below one so they would have reduced their rates if that had still been the case by the time of two thousand and sixteen they have not stopped using rates below one ok the only just as this question so do you suppose that it's commonly understood and you may disagree with the premise because just bear with me on a hypothetical leisure suppose that it's commonly understood that the rates were too high and two thousand and sixteen because of a failure to take account of waiting and then let's also suppose that however difficult it is somebody could go back and not whether they should be mandated to do a bit of they have discretion going forward to say ok now we've done that we realise that the waiting wasn't taken into account it should have been we've also done all the calculations to figure out what a difference that would have made you know they say ten dollars to fifteen million dollars  because carr says no it's like two million dollars i don't know but lucius whatever the coast guard comes up with and then they say well here's what we're going to do now we see that actually the shippers were charging two million dollars too much and what we're going to do is going to affect to eight that going forward by starting in twenty nine thousand dollars or two thousand and twenty and you can do it over three years as you say but somehow we're going to make up for that two million dollars by reducing the rates on the  provides for that exactly that type of adjustment on the coast guard's discretion and that's exactly how it should be taken account and it is to judge ralph point about this sort of what what happens then is there more litigation yes but what we don't have the alternative is to have this case stay open and and recycle annually and instead what you have is a more crisply you have a new agency action to be challenged on the basis of the record at that time and a new exercise of discretion and i think that's a better outcome what's that then the new agency action is triggered how the the new rate making in which the coast guard either applies the discretion somebody is going to sue let's just assume that when they advisory committee makes recommendations to how that based on the district court's decision in the district let's remember here the coast guard acted on the waiting factors issue before the district court employed any remedy at all for two thousand and nineteen or two thousand and seventeen they went right out in april put out a supplemental notice of proposed rule making and said hey this is what we're going to do this is how we're going to go forward and what if the coast guard doesn't want the let's say is there not is an action that can be brought to compel the coast guard to take it into account if your problem piano but more they're not going to even need to use that because they will have made comments in the to the notice of proposed rule making and when the final rule comes out if they don't they move it's arbitrary and capricious the agency not to have acted appropriately than that in the ordinary course when what statutory authority does the coast guard have to take into account you know send a miscalculation in the past and apply it to you know shippers and pilots in the future which may or may not be the same you know i don't understand they're right ricky players but they maybe some different players mean what statutory authority do they have to take something from the past and implement that in the rates going forward inherent in the rate making function generally is is some discretion in this particular scheme costs is like a driver that in the standard it's not the cost of what's actually happening it's a massive cost that might need to be it might need  considered i believe that will be within the agency's discretion and actually in your question it's important to memory we're going to go after the cost problem because they have to look at the public interest in the costs and we think it's part of the costs yes or even though there are two yes the statute doesn't talk in terms of setting a rate that is limited to costs for that year the statutes not that specific it's perhaps inherent in my having to make an interesting challenge this is not something i've thought through  this we're going to take money away from pilots and force it and i'm sure they have the authority to do this but to order those payments to ship that way i'm not really aware of coast guard authority to do that and wonder if they have authority to do either one maybe it it's  possible that they don't i think they probably have authority to make some account for it in the in the in a rate making it would be better and i think it would be better if it were sooner right so if the litigation happens in the district perkins direction as happened here and then the coast guard does what it's thinks is appropriate as quickly as it can't that's the but that's the best outcome and that's what we have here we have meaningful direction and just the insight that they gained from litigation that caused the agency to act it may not be in a way that completely pleases either party but i sympathize happens that when you're in a raving capacity some commenter will come in and say you know there's something that just hasn't been taken into account that's been going on then there would be ability on the part of the agency not the perhaps not the mandatory obligation but the discretionary ability on the part of the agency to take down that take that into account and then offset it by things that will raise or  not or decide not to and the closest case i can point you to as long as it's done it's as as long as it's reasoned decision making not to not to do right and this court has held in this similar kind of context that doing so without notice and comment procedures was even out some statutes specifically provide for that authority for because one under the federal power act for a long time they can order refunds their specific statutory authority yeah give notice there's a refund effective date used to be sixty days then it's not that's exactly the kind of statutory authority don't have here to go back in the coast guard has taken the position that the government counts on you know in response to questions about discretion i understand she doesn't want to give up her agency's discretion but i'm really thought it through and she wasn't speaking with because i can tell you that when we raise this issue in the two thousand and fourteen great and that was a very different case because that really was that there was sort of a formula and they did it we raise that issue the coast guard definitely took the position they did not have the authority to go back in order to refile and we had a refund hearing in front of judge chalk and she didn't seem all that anxious to wade into the issue and so we settled down the difference between a refund in the past also taking into briefs judge contrary did not find that they were overcharged as a matter of fact when they kept arguing that he found the obit john she just simply sat in his remedy hearing no they're misunderstanding my argument i just said they had and to consider the waiting they could have come back and kept the rate in place they could have kept it higher they could have kept it lower but this notion that he founded over charge that's on graham and it isn't completely inconsistent with this ruling he specifically said that hadn't happened they could have come back and account of what's been going on with the waiving factors issue was presented in the two thousand and sixteen rate the industry came in and said what you should take these into account in projecting revenues and therefore you should lower the rates and the agency is looking at a situation revenues in the past we've been to we've over projected the revenues of come in lower year after year after year the revenues of comp and lower so you're telling us now industry we should lower the rates because we should change projections to project higher revenues from this but that hasn't been our experience so you may have a point we'll look at it for a year and then we'll change it which is what they did and that was their understanding that was how they kind of took it into year you're letting getting the raid and then you're going back and settling you know upset example then voices which is not the way to bring back that work that's not the way that rules that were in place work that's just never been the way and spend on you know we were underpaid for many years we didn't go back and say hey you projected revenues of x the revenues kaibab at ninety percent of x here industry here is your bill for the ten percent we went back to the next rating in the next rule making and said a slate of change to the statutory scheme the only recent legislative change was the change that required the rates to be set every year and that was in two thousand and five and that was actually the result of litigation because the agency had been delaying rate increases for so long that finally congress said look you've got to do this every year or so that you can keep up and of course with that all those two thousand that was in two thousand and five members that's one of the reasons we have the big rate increases they keep complaining about as they were so low for many years because the coast guard never got around to the change now we've got to have a change every year and i think that allows you to sort of fix the problems of the industry identifies a problem the identify a problem and then be taken into account in the rate going forward but we've never had a circumstance and judge can turn this in the two up we've never had a situation where when that spics going forward we then go back and upset all the young voices that have been issued before projected revenue figures have been exceeded by the actions by significant percentages on average over the whole period it's been thirty percent were from the the rate payers see this in the affected businesses see this exactly from the other in the telescope that this is what we have is a system that routinely over generates revenue by significant amounts and has year after year after year since two thousand and fifteen that explains in part why we're in this period of litigation this the the rate payers prior to attacking this two thousand and sixteen rule ha not actively litigated these things i don't want the court to walk away with the opinion that it's inevitable that there's always going to be one side or the other buzzing about this in the agency is just stuck in the pilotage costs are now the highest single cost for a vessel operator once the vessel comes into the wings these pilotage costs have risen by double digit percentages and they're completely out of phase with the canadian pilots in the spring april two thousand and seventeen it has it had a year in financial picture of what the two thousand and sixteen rates are done and they said you're right they didn't say right they said they have overproduced by twenty roughly twenty eight percent which is exactly what we predicted because of the arithmetic certainty of the air we knew what the average waiting factor was we knew that the coast guard in the county for  guard did nothing they could while the rates were still in the coast guard could have done something the rates were still in effect that you remained in effect for almost an entire additional that a geisha and season the coast guard did nothing the coast guard did nothing ticking on the appeal was why we're here before you today they were going to do nothing about approximately ten to fifteen million dollars has transferred and i would take issue with  we have also raised two elements that we've not addressed here today these are brief particularly were i would draw the court's attention to the fact that there is a detailed who's going to study in the appendix j for