simple rule in this case the a o j found that using amber should have noted in addition to what he did no good and if you want to follow along on the actual exam record it's a five twenty nine as you can find the exam belt so the inspector the yale j did in fact find that exam or adds testified truthfully that he did not see these conditions so this created a problem and apparently recognized in the logical disconnect that but it but he also says at the end of the very next paragraph in these circumstances i find the response examiner was highly negligent in failing to properly document the nature and location of the numerous accumulation others in the corrective action taken in earlier in his opinion he said that mine operators are strictly liable for in that they don't get it now by saying that the you know they didn't know about the violation so taking all of that together isn't they tried to repair the damage it was caused by the hail days decision because they had to they had to deal with this logical disconnect because the regulation itself says that a record shall be made of violations and hazards that are found and as i was getting prepared for this case i noticed that this court here did did at least in interpret seventy five three sixty three in the national argument that you're making in the blue brief she said in your opening brief that your client's inspector didn't observe these conditions but that was in support of a factual argument that the conditions didn't exist at the time of his inspection i didn't see a separate legal argument that the record keeping regulation only to what you actually see as close to what you should have seen well your honor in this case the we believe it is fairly raised and we believe it's really the reason we do you point to where yes you're on the to show us me sake you say page nineteen the examiner did did not observe at the time of the exam any of the individual areas that's the closest i could find but it was as i said all in in service of the factual argument that the conditions didn't exist at the time well your honor in this case we have maintained from the opening statement to the president that that examiner did not find these conditions and that has been found to be the case from the opening statement to the president that the examiner did not find these conditions and we believe it's fairly included in the factual portion of our brief and the portion of our brief talks about the fact that we did not violate seventy five three sixty three b and in that in this court here in july of last year when you decide to conclude consult case the court said that it would take up errors that are fairly included or intrinsically related i can remember the exact words to the elements i mean this is a legal question on the elements of the offense if was this phrase before the commission it was raised before the commission and that we contended that mr adams did not observe court found in the consult case where it's inextricably intertwined in addition what happened here is that on in the commission mark argued that they were confusing the record keeping violation which has one requirement with the exam or requirements under three sixty a one in three sixty two and that's also mentioned in the decision and those unlike the record position below and we all know how deference works that is based on what the position of the secretary is the secretary's decision was that that the six areas had to be noted because they were present this was also not the inspectors position as we pointed out the inspector specifically noted that he didn't was not alleging an inadequate examination he was only alleging an inadequate record and it's  contrary to the regulation itself as a matter of law and what happened was is the commission created this new rule that says that you that the adequacy require of the examination is superimposed on the record keeping violation but it's the first time this rules ever been announced let's let's let's suppose that that we assume for the moment that the examiner what you contend that he saw still what was written down was a slope needs cleaned cleaning in progress which adams himself examiner are because it's longstanding practice mr adams said he's been doing since he got there i believe in two thousand and seven and the court has several of the exam records that demonstrate that this is even why does his practice of stamp and in dealing with what this regulation requires in that mean that that slow build itself is like was like thirty six hundred feet long yes your honor and he sort of so how is saying that that bill needs clean without identifying anywhere some of the coal would come off in it off the edges so moch had to assign additional men to and they had ten there on the day of the citation and so it truly was some accumulation throughout the entire slo go back and forth about well you know if it had been like this but not touching the belt would you have written the citation and you know they never he never really got the final answer on that but you can tell from reading the colloquy that that mr reynolds needs cleaning wouldn't really convey the seriousness of the six areas one hundred feet or something where there was friction it was hot to the touch  commission and a o j as i recall found that that mr adams did not see those six serious they were on the off side of the belt so he didn't see them and he was even a rubber tire rod which is perfectly legal doing his exam and  e so he adequately described the nature of the simulations and the location of them and what he wrote was consistent with what has been required it's not the answer they were putting rules out on this it says hey you have to do something more than this this is a first time situation there's nothing in the program policy manual there's nothing in interest ever come this wasn't even interest rule the commission created this rule in this case the commission properly found that mark violated the safety standard by sailing to record the nature and the location of hazardous conditions related to a massive coal accumulation on a very six feet wide or wider under this called out including numerous locations where the moving belt and rollers were in contact with the deeper kenya lesions in total the inspector counted fourteen rollers and one hundred five feet of belt that were in contact with coal cumulation inspector reynolds explained that the examiners notation needs cleaned and work in progress were quote very nonspecific non critical type of wording that didn't say where it needed to be cleaned how much of it needed to be cleaned or how anything was in contact with the belt petitioner's argument seems of what chris shift examinations inspections have to include in so that if if the testimony is credited that he didn't see it then how can he be cited for not reporting what he didn't observe this is the citation if he should be well he didn't do a proper inspection and so so this this whole regulatory selection doesn't make select a more specific standard of recordkeeping than i general standard of performing an adequate on ship examinees just hear a difference in penalty or severity or gravity of record keeping versus you know failure to inspect properly i think i mean i i don't i don't know i but i i i know in this case examination would incur a higher penalty than a record keeping violation i i can't answer that question i'm sorry i don't think so is it your position that the argument raised by the dissenters that is argument is not properly before us because we raise yes i would say yes because the secretary is not alleging and adequate i checked examination there just assume the so mean we find the issue that he should preserve question is through the regulation says you have to record violations found by the examiner and the interpretive question seems to be whether that is broad enough to encompass violations that the examiner should have filed but did not seems like that would have arisen before is there sentence the inspector cites that loose call was allowed to accumulate in excessive amounts and then further down in the middle of the say tension he says in addition accumulations were in contact with them in bulk and rollers so here they inspect the examiner obviously saw these excessive amounts of accumulations and the record keeping violation goes is based on this first accumulations violation so it's really more than whether the accumulations whether the saw him served about just a couple of hours after the examiner observed it and he believed and the judge credited the inspectors testimony that the accumulations had existed for several shifts and work contact with the belt rollers at the time of marks examination and so we just which is enough for you to win on the question whether the violations existed at the time that a different point from the question whether contact in the belt and rollers in at least some of those locations the judge found that driving up the belt they have what was the word the judge used made it difficult for the examiner to the examiner there are violations that are obvious that any prudent examiner should have seen even from the travel way side of the bel know what is written down in the examiners inspection record is basically everything is fine the agency inspector comes along just a few minutes later and documents all of these violations of accumulation that were obvious to her when she comes along just a few minutes later so if the if the company's the operators defense is their standard defense well he didn't see th she examined didn't see that didn't observe was what kind of i guess regulatory problems does it create for your agency your foe if they're able to as the point on regulatory gap that judge welcomed wilkins raised i want to follow up on that very briefly there is no regulatory gap here because all the commission would have had to have done or the secretary would have had to charge under two other regulations that they had at their disposal and i wanted to follow up on the second part of my answer to judge wilkinson didn't finish it but as i was back there i was thinking about it and that is that there was a wharf back of a big wharf back event between the time of the exam six am and the time of the inspection at eight am and that accounts for some of the additional cumulation is along the belt and finally i just want to point out i mean from of wolf from from purely regulatory construction issue nobody found this regulation was ambiguous so why is it being interpreted so if it's him being us there's a new rule that's inconsistent with the regulation that that's a problem ok thank you