admittedly brief, USDA’s response did not adequately explain the basis for its decision. Instead, the denial letter primarily cites the district court’s decision in the Hornes’ previous lawsuit challenging the twenty-day time limit as it applied to their complaint for review of the agency’s final order denying them an exemption from the RMO. The district court’s ruling in that earlier case does not explain why the agency declined to consider amending the Rules of Practice. Nor does USDA’s statement that it “believes that the procedures under the applicable Rules are adequate to effectuate service of department decisions” provide an adequate explanation for its refusal to conduct rulemaking. Cf. O’Keeffe’s, Inc. v. U.S. Consumer Prod. Safety Comm’n, 92 F.3d 940, 943-44 (9th Cir.1996) (<HOLDING>). We emphasize that in holding that USDA’s
holding 50 potential members was not sufficient holding 39 potential members was not sufficient holding that the commission did not act arbitrarily or capriciously in denying a rulemaking petition because it considered several factors to determine whether an amendment to the regulations was  appropriate or necessary such as the potential benefits of the requested amendment potential costs and the relation between the potential benefits and costs holding that where tjhere was no dispute from the trial record and between the parties that the defendant requested his counsel to file a notice of appeal and that counsel did not timely file such a disposition was appropriate despite any potential jurisdictional problems in part to avoid the potential that a habeas petition seeking the same relief would use up the defendants opportunity for a first petition and to obviate the risk that a habeas petition would be untimely holding that the jury is not to consider the potential punishment which could result from a conviction