regulations should be given substantial deference as long as it is reasonable and is not plainly erroneous for a consistent with the regulation just curious question i have is why is it co think the government's on the record throughout this proceeding is protesting the c r t s ruling as well as protesting we know that the why are they here i believe they are not here for two reasons i believe that because co three one three and now you're telling me commerce amended a different regulation regulation two i'm saying they're not here now yeah because of a later amendment to a different regulation totally different you lation that does apply to the entire part three fifty one including two thirteen d one which is part of part three fifty one what if two one three b one says reasonable as it more general umbrella rule for him tim well if we transport ourselves back in time to when this was occurring the three o two that was in place at the time there was discussion about the importance of addressing what they should do they further clarify the second sentence which discusses granting extending the deadline for timely record setting a deadline for withdrawal requests if it's reasonable to do so that's when they explained in the repro motivation that they are in fact addressing untimely filed deadline extension requests which at the time both in eighty nine and even at the time of this case three o two didn't address now in two thousand and thirteen after this case i think what you're suggesting is that the three have to rule on that nasa is extraordinary circumstance trumps reasonable inquiry him two one three d want i would put a different way but thank you for the question i would suggest that section two thirteen the one now since it's not as reasonable right out say it so we don't and i would say there's no need for separate from the concept of extraordinary circumstance then it seems like there's a conflict where there's a general rule demanding one concept be a you to this case because i mean most of your discussion seems to be about stuff that happened after this case that really doesn't bear any relevance on the interpretation of the writing in the time and issue do you mind if i move you yes i read be happy to address how things were at that time so so my problem with your case is that i don't think that the word reasonable and the word extraordinary circumstances overlap an event diagram you know and you know what event diagram is not trying to be tricky no i think what is reasonable is a broad range of things and i think extraordinary circumstances is on the very tail end of a bell curve really probably beyond what is just reasonable and so i guess you started by saying i think you're right in your articulation of the law our differences accorded when among other things the interpretation is not inconsistent with the language itself my problem for you as i think it is i don't think extraordinary circumstances is consistent with the word reasonable so let me just take that head on and tell me why that might be wrong the departed the twenty eleven when they were clarifying the nine hundred ninety time the case this case was taking place they determined that they need to address how to rule on as a temporal matter and timely file exceptional circumstances became but you have said nothing that even comes close to answering my question you well because what you've just told me is the fact congress decided to do it my question was are they allowed to do it given that explain to me why they're not inconsistent that's what you need to do because once it's reasonable i understand that congress came along in two thousand and eleven and decided to change its view but that's changed for you that has to be achieved through subsequent regulation which it ultimately did they can't rewrite an original regulation so my problem is this feels like a rewriting of the original regulation and feels like it's outside of  our deference because it's flat out inconsistent so that's what it really is you not not why they did it or how they did it but how is it not inconsistent well i believe reasonable to i don't believe we're doing a  secretary may extend the time limit the secretary decides that it is reasonable to do so is language that appears in a formal regulation adopted by the department consistent with and in accordance with notice and comment rule making on the administrative procedure or is that a fair statement both in one nine hundred eighty nine and again in one thousand nine hundred seventy s my further understanding is that this language about extraordinary circumstance that appeared in twenty eleven was not a regula of what a reasonable secretary would do is that fair that's for there was a clarification so more question is really and as i've read the record and as i read the regulations that would require the secretary to take into account a variety of facts and circumstances wouldn't it ordinarily wasn't that the understanding filed should be handled and that was with good cause there were abuses what is a timely question is a timely request one that's made prior to the ninety day expiration period correct and you're ok so go ahead somewhere in that it's they make a distinction between pre and post it is something very peculiar about this whole sequence let me take you back for a moment to the hundred eighty nine regulation which was the adopt the regulation here's the phrase the secretaries may extend the time when that if it is reasonable to do so right correct however that got changed to read and nineteen eighty nine the secretary may extend the time limit if the secretary decides that it is secretary to exercise why discretion so i think you may have something there that they were emphasizing and they say so in the  that it is important in order to curb abuses for the secretary to exercise his or her why discretion in determining whether or not an untimely filed withdrawal request should be a granted and what i find very interesting also in that ninety seven re promulgation language and this is a sentence that was left out of the c i t s first opinion requests for review even in situations where no party objects so i think you're on to something before it was yet which suggests maybe was somebody other than the secretary or in addition to the secretary and here we're talking about the district court's decision should be affirmed and it can be on affirmed on the basis that the judge provided which was mainly focusing on the legislative history of the case but i i don't think so because the language in the regulations still still there and just in practice what happens is it's a total pinpoint why would i guess what something i wouldn't get power because it would be something because if there are other reasons and if you yeah they limit they said there they gave their one or two or maybe perhaps three things that they want to look at but there  are there still remains other things to be looked at to determine whether their determination is reasonable they're trying to define reasonable bussing we're only going to look at this and as long as we look at these three things it's reasonable when there is that you know this isn't there supposed to be you know a fact finding or decision making entity are supposed to make decisions based on substantial evidence and so they're supposed to make a decision what's in front of them  you can't interpret reasonable to be constrained to certain number of factors one to factor one two three four here's what we're going to consider when i've been reasonable but what happen a factor six seven eight nine you're not going to consider them at all you have to consider all factors that are in the record and that's before you have to make a reasoned decision you can't have reasoned decision that's based on ten factors in front of you can not be based by saying oh we're only going to look at the reasons one two three that's that is under reasonable you have to you have to look at all the factors to make a reasonable decision  that i mean could they list a series of factors they could say things that are working perhaps sort of generally we are going to look at these perhaps more than something else what i mean you still have to look at that you know secretary act in a way when it's reasonable to do so it is expected that the secretary will act reasonably which would be to consider all the evidence in front of him  three that's reasonable and it's unreasonable if you and one hundred let me try to help you it would if the secretary articulated four factors and if it turns out there was another important factor in every reasonable person going to thought it reasonable secretary would have considered in the assessment of reasonableness that it's unreasonable to exclude that factor but the factor being excluded is not really something that would be relevant to a reasonable s assessment the secretary is perfectly highlight some things are not relevant they could do that in individual cases they could also do that in the federal register of crime more broadly but it's only dropped by more broadly if it is in fact a reflection of everything that was reasonable to be considered and there's a rule in you know under normal price you want to save the right to challenge that right shows that rate because it is it is under court review right now and as it stands now that address the second argument that we had in our brief before you and that is the c i t directed a result through narrow constraints to commerce commerce rightly protested throughout this proceeding that the c i t severely constrained it with the second opinion yes they did try to walk back the initial language so you are quoting the initial language aren't you though this isn't that this is the second opinion second thing second ok this is the second opinion and the so congress really had no choice but to do exactly what the cia directed them to