before us here is very narrow i would suggest that given the decision of the cool matter i may may not pronounce that quite right k u e h l i think the issue of non delegation is pretty much off the table for today so i really do not intend to address that it was mentioned in our brief for preservation of the people who are resisting but we won't mind if you talk slower and but more importantly louder yes more re stating i think that the that the non delegation doctrine is pretty much off the table for us today as i see the issue before us today is whether the interim rule was violated by the attorney general on the february twenty eighth two thousand and seven interim rule that was published by them we see the issue really very well developed in the reynolds two decision by the third of the third circuit we see that as pretty clear from the majority the circuits that we've researched that the attorney general's office has failed to show good cause as to why they should not be required to follow the procedure set forth of the administrative procedures act i think that even the johnson decision which is relied on the government also notes that the government has failed to show good cause so we see the issue really more as to nature of harm where your prejudice has been shown as noted also in the riddles to decision we think that there's an issue of burden shifting here because this is a criminal case the deal out of the fifth circuit did not deal with the burden shifting they just simply saw that there was no good cause and as in civil matters left the burden on the defendant to show that harm that he was harmed however as noted in the riddles to decision we see it as being correct and shifting the burden to the government historically as far as mr burroughs concerned he is a pre point in two thousand and four he moved to south africa and then he moved back to arkansas on december of two thousand and seven at that time sorta had been passed by the congress in july of two thousand and six but there was no procedure or no a condition or requirement in the original sora to require pre date offenders to be required to register they left  for the attorney general to set forth an appropriate rule to make that determination i think us vs car or even reynolds one also talks about these gentlemen are not subject pre date defendants are not subject to the sort of unless and until a valid rule has been promulgated by the a g so that's kind of the set up here again as i indicated and it's pretty well covered in the brief we think that the issue is one of whether there was harm in and i don't want to just try to read everything this covered in the briefs i think the briefs are well well present the issue of us and the in the government at this point your honour's i'd be happy to address the public or to mr rove well it's both because it says the a g had an utter failure to comply with the a p a and had no notice and comment they did not make the notice of comment required as they just simply promulgated rules  we have good cause we think that that applies period in the story but as noted in the riddle's too there was this burden shifting because this is a criminal matter because a liberty interest is at stake we think that it's appropriate for the government to prove that there was no harm not for the defendant to have to prove that there was when you said it's a complete failure so they'd had no notice and comment period what if what if it had been something less than that or more than that it did then maybe a technical error or something was left out of the process how do we assess that well i think that riddle's to decision which obviously we're relying very heavily covers that is a particular issue but because it is an utter failure i mean there's no no ifs ands or buts there was no no to carry a notification there was no comment period it's not really even debatable so your position it's per se it is not think that  absolutely no notice and comment it doesn't really matter that's correct and would that be for criminal and civil well without addressing the civil arena i would certainly say it would be for criminal we have a liberty interest at stake that you don't have in a civil ma if we look at some of the other cases that i think the hawaii helicopter case and another side in the brief this is not a civil matter this is strictly criminal and again we were lied heavily on riddle's too which gives a very in depth discussion about it talks about the difference and in the circuit splits and in the other matters i'm not trying to avoid the question but i would say that it's it's really well dealt with dealt with well in the breach so dispense with notification well i would say none the reason than the reason that i say that is any agency could jump on the same bad wagon and say let's see easy to say but do they do that frequently well endemic problem with rock the government lomo health epidemic it is but it certainly this is a case that i think that there is materials that would indicate that this affects literally thousands or hundreds of thousands of defendants so i i would think i would like to say that but it appears that one of the attorney general white seven months from the enactment of sora to to apply the interim rule it appeared that the that it was really nice in other words you're arguing it's not like acting within thirty days of the twin towers correct they have certainly they have the personnel and the ability in the funding to make quick decisions and move quickly i think that the attorney general's timing made it appear that it was a foregone conclusion they were just simply throwing it out there saying ok it's retroactive period and story they don't i don't think that it believed it had to follow those procedures think that the timing indicates that the reacted very hastily and i think the interim rule as indicated in the realms to demonstrate a single minded commitment to which desire to make the sub to result here from the government rule without the thirty day notice and comment period was not a violation of the a we would just start today that be it became applicable on feb twenty eighth two thousand and seven when the attorney general's interim rule was promulgated and the attorney general at that time had good cause to bypass the notification  comment provision of the a p a the a p a requires publishing notice and comment a proposed rule making in the federal register at least thirty days prior to the promulgated of the rule also  it requires that internet to interested persons pardon me are given an opportunity to make comments and participate in the process but the a p a also allow this instance contrary to the public interest and i would assert that in the sorn a case for this sort of interim rule the attorney general had good cause for dispensing with a thirty day notice  comment period and that he wasted in his comments to the feb twenty eighth in an interim rule he he alleged multiple reasons i would assert not just one and that those multiple reasons should be read together as the dean case intimated the first reason that the attorney general gave was immediate guidance on priests want to sex offenders and  applicability to the end was was it immediately what about the seven month delay that seven month period is certainly troubling there but what i would say to that is i think the attorney general's office just a a set of laws dealing with someone's requirement to register it is also implementing a national standard basically by which sex offenders are registered each state had their own sex offender registration laws but they were kind of a patchwork there's there's differences amongst them in terms of who had to register how long they had to register and things like that and part of what i believe the attorney general's office was doing in that seven men period determining and working with the states on how this is going to be enacted so there were other i guess other issues at play rather than just the sort of being applicable to print act that sex offenders  reasons put forth by the attorney general was that it was to ensure it was applicable to all sex offenders because that was not the case still the attorney general said so regardless of what his thinking to this had been prior  i would also say that just really stickley speaking it does take time for an agency to implement a rule certainly there's always an argument that they could be faster or should be faster but i would also say that whenever the rule that they're implementing deals with a violent offender a sex offender that there is an inherent danger to the community and a sense of urgency so that once the agency has gone through whatever process they're going through to to come to the decision we're ready now to promulgating that they should do so with all immediacy and that public safety demands that immediacy well what about  what i think is the fact that all of the states have now most of the states already had registration requirements in place at that time i think it goes back to the fact that they're all different i know that just having been a state prosecutor before a federal prosecutor there is a difference even in arkansas between state laws and federal laws and and that is the same across the country so while there's some overlap there's also gaps so as are those differences then you're saying is what caused the public safety problem is that is that the finding i think it's a part of it i don't think it's by any means the whole thing i just i think that for one one reason is that there is a gap that  six to cover i think the other reason is the public safety is that anytime you're dealing with a registered sex offenders or mr brewer is a great example then you need all the resources possible and what sort of brought was more resources than the states had available to them more more resources to more manner and means to go about trying to locate and get sex offenders registered mr bitterroot a perfect example in that before two thousand and five he did live in arkansas and did register three different times he leaves the country in two thousand and five and is gone for at least till the end of two thousand and seven comes back to arkansas and doesn't register from the end of two thousand  seven and till he's arrested in two thousand and nine i mean that in of itself shows and he's arrested by federal agents not not state so i think we see just in that action that state that federal involvement achieve the goal and that's part of what the urgency was to put those resources out there and make them available  offenders for those reasons i talked about with having the extra resources to go about and find them and the public's interest in knowing where they are knowing that they're not close to schools knowing that they're not close to playgrounds and things like that and in protecting the public to it additional sexual assaults and child abuse and exploitation sony's very purpose in protecting the public is mentioned in the statute forty two u s c section sixty nine zero one and in that it talks about the state laws not being adequate soreness in acted in memory of past victims every day not fully implemented would put the public at risk these are all things that congress stated when it in acted and i would point out that that the dean in the gould case both recognized this and would assert that the fourth seventh and a left eleventh circuit got it right and would urge this court to follow them in finding that the good attorney general had good cause for promulgating the interim rule before notice and comment excuse me if the court is not inclined to follow the fourth seventh and eleventh circuit and find that there was good cause  would urge you to uphold the a p a interim rule on a harmless error review and in that instance i would ask you to follow the johnson the fifth circuit in johnson and the concurring opinion in the dean case and find that any deviation from the a p a standards listed in five u s c section five five three were harmless what about the fact that it really was  o avoid there was just nothing it wasn't just a technical error not to just was a choice not to have the notice and comment i think that it was a choice i mean in the sense of there there was kind of no notice and comment period at that time however i would argue that in the preamble and in the comments made by the attorney general he sort of lays out why the issues would be four for notice and comment kind of in anticipation here's what's been happening in here's why we're doing this because there had been litigation there had been a litigation over who who wish to applicable to i mean that's one of the big reasons why the interim rule became necessary because sex offenders were were litigating as to whether or not dorna sex offenders could be held liable under under the new statute and he does comment on that as well i think also he mentioned  ex post facto in his comments and the how the the legislative in t n it would be thord it by waiting and continuing to wait so this is what you're saying he gave notice in a different form yes ma'am i think that that's one way to put it i think he's i think he laid out the anticipated issues that would come up in a notice and comment period so where's the comment part of the notice and comment well to that i would say that between the end the time the final rules were implemented there was no substantial change to the law mr brewer his conduct was criminal under the february two thousand and seven interim rules and it's just as criminal today so i would say that there's it's harmless error because there was no change for individuals like mr brewer and i would point out that mr brewer has not asserted what communists he would have made in a notice and comment period or how different they would be from what the attorney general might have mentioned in his preamble and it's i would assert those facts indicate that mr brewer personally was not prejudiced or harmed in fact rather than articulating what his former prejudice would be just step back and said it's not my responsibility and excuse me and he is and would assert that he is not prejudiced by a lack of notice and comment mr brewer is only he is a perfect example of the person that the attorney general was trying to protect the problem public by immediate implementation of the law but what about the point that opposing counsel makes the difference between criminal and civil and where that burden should lie i think i don't have a great answer to that will be up front but i would say that  that the factual and legal analysis between the civil and the criminal is no different because basically it's the same legal issue and ultimately i think that's our overriding position that because it is the same legal issue there should not be a higher standard on the government i mean these are mr brewer is the movement he brought this to the district court in twenty two fifty five and he brings it in out of this court on appeal and i believe as the move it he bears a burden in this matter more than just saying hey i was wrong and that the statute the a b a statute allows that he should show prejudice and i think that that's the appropriate one to follow  well i can say that having litigated corner cases from the very beginning but not having done so many are i should say at this what i've prosecuted sort of cases right after it's been in x men in two thousand and seven but have not done so many in the past couple years i can say that as each supreme court ruling has come down at the carcase originally prosecutors have become more selective usas are pickier about what we charge so i think that there are fewer and fewer mr brewers out there and i would note that the supreme court's decision in rome and reynolds the third circuit and now the a circuit as far as i know are really without only one's taking up this issue a pierce what about the argument that mr brewer was known babe in the woods he came back knowing that arkansas was like and he didn't comply with arkansas laws and that the case well that may be true for the arkansas law but we're still dealing here don't it's been eleven years since i've been here so i'm a little out of practice but i'm happy to try to do what i can to to help the court anyway and again why shouldn't we follow the fifth circuit he told us early on but i've already forgotten well your hon section should not be followed there is no good cause for that where we see the the the the crux of the disagreement is going to be the harmless whether there was harm cause and who has the burden of showing it or not showing it we have to remember at all times while this has been going on defendants have sexual offenders have always been subject to the wetterling lack of megan's law in addition to the various state laws and i understand the government's position that there's some some question to try to get some uniformity here but one would think it is important is this issue is that they would take their time in doing it right when i see the issue about the the a g kind of waited for litigation to occur before it was ready to do something i'm just i'm not persuaded by that seven months is a long time you're not going to kid litigation in seven months it's got to start with the district court and work its way up to the courts of appeals and maybe even up to the acted on its own it didn't have to wait until the attorney general's office to give us a give us a room maybe they thought there was no need to know well i haven't reviewed the congressional record on it but it would just seem that congress delegated this decision to the agency and the agency decider around for a while them for some reason decided to publish the interim rule it relies on this need of urgency and protection but are all government agencies who are required to  or anyone else should be required to offer what sort of comments he or they would have made had the publication been property not in i would normally agree with that except that we know that mr brewer if the court was aware of his involvement in his own case he's filed his all motions to dismiss he filed his own twenty to fifty five he's been heavily involved in this matter he has been involved more so than almost any client i've ever represented and i'm and i'm probably trial involving the sort of in arkansas so we we've had a high interest in this issue from the very g