section fifty two point five four the regulation at issue here allows of the garment of inspections services when what was found by the administrative law judge and upheld by the judicial officer was not an distinguish what i'll be getting to a mid section sixteen twenty two h has a proviso it directs an authorized the secretary to provide inspection services when requested i am allowed to secretary to capture the cost of those inspections there are a number of commodities agricultural commodities that don't require inspections authorized its factions a particular buyer may want a hammer of particular item of produce to receive an inspection u s d a inspection right under sixteen twenty two h to recoup its cost for that and the secretary is order authorized to provide those inspections services  because sixteen twenty two age that that no person shall be required to use the service offer rise by just subsection therefore it's not mandatory you can ask for you shall receive it you fifty two point five four says that they are using sixteen twenty two h to the bar from inspection services is not authorized under sixteen twenty two a we have three things since fifty two point five for service allows department from any or all benefits of the act first of all we have to ask the question is american if american is not utilizing the so called benefits of the forty six act sixteen twenty two h it can't be barred from the inspection number two unless the the spec shown is voluntary as describe sixteen twenty two each american cannot be barred if the inspections predatory six twenty sixteen twenty two h only says it's only voluntary and three sixteen twenty two h only permits criminal fin c section six zero one sack that authorizes the secretary to establish marketing orders for various products you have an arm and marketing order you have a raise in marketing order and you have many others required inspections under the thirty seven act four races they are mandatory under section ninety nine point five eight for incoming inspections ninety nine point five nine for outgoing inspections american racing cannot be the barred from inspection services that are voluntary under sixteen twenty two which is the forty six  fourteen there are injunctions under six so wait a sec but there are no department remedies under the thirty seven act and since american is not receiving inspections the voluntary inspections under sixteen twenty two of the forty six act you cannot use fifty two fifty four practices not intentional or willful ok let me ask you with respect to the c f r i think part of your maybe most of the argument hinges upon an argument that a one describes much more than willful eyestrain you will concede that yes but i think in the context of this is beside the argument that i'm just making the argument that i made that i'm talking about sixteen twenty two h provides no authority here because race inspections are mandatory so you can't just authority sixteen twenty two eighteen therefore you can't use fifty two fifty four getting to your question is under the you this is fraud or misrepresentation then you have number two down there well for violation of the regulations in the sub park i don't see how one could read a one to allow a department for negligent misrepresentation but not allowed the barm negligent violation of the regulations which is in subsection two it seems when you read the whole thing that it has to have some type of knowledge element further my cl is backed up by sixteen twenty two sixteen twenty two which goes on for ever talks about how you can impose criminal penalties knowingly violates secretary to come up with a regulation to come up with a new remedy which is department at the sixteen twenty two h the state department to come up with a new remedy and be able to throw  regulation and allow the bark at their whim for never to this representation because particularly with respect to raisins because cameras are receiving raisins of all demands inspection when all the races come in ninety eight nine point five nine demands us the inspection when all the raisins are shipped out if you can't have them inspected incoming because you're barred and you can  well take somewhere else this year but next year when america's back in business will bring i don't know buyers going to come back don't know the ultimate penalty for a negligent misrepresentation violates due process now the cork and avoid the due process issue by looking at the statutory grounds in the statutory grounds are since american did not receive whether willful or not this argument that this is the first time that i've heard the argument that the secretary was not authorized under the statute to impose a divine man or to  if this regulation and the argument that the secretary's interpretation of this regulation is contrary to the statute was waived by the plaintiffs that's not at issue in this case plaintive argues that any misrepresentation really means some misrepresentations specifically only willful once plaintive can't they are under the a p a unless it can show that the secretary's interpretation is inconsistent with the plain language of the regulation second the agency's use of the word willful in subsection eight two and it's a modification of the word misrepresentation elsewhere in title seven shows that the agency that the secretary knows to use the word willful when it means to require a specific intent and that and they could have challenge and in fact they did bring an eighth amendment challenge and then drops that below they could as raise and challenge to the extent of their sanction and they did not raise that type of challenge here  reason is that ordinarily golden reasons that were mixed in with the thompson reasons would have could have only been used for bird seed here because they were nice people but in fact these reasons were headed for people that's correct i see are a very small percentage here of the sanctions and again planted hasn't challenge to the extent of the sanction here they've only challenge the interpretation of the regulation to include negligent misrepresentation of violator in addition the judicial officer has the discretion to determine the extent of the sanction based on the evidence in the record as here is the prior prior violations in unless the court does any where i would like to ask one question but i don't want to detain you very long i heard loud and clear your argument that the sixteen twenty two who argument has been waived that's right assuming for the moment counterfeit of certificates that part of the act is not applicable here this regulation has to do with this provision in the regulation has to do with misrepresenting samples for inspection promulgating that regulation has at the beginning of six twenty two each where it says the secretary is directed in our theorised to inspect certify and identify the class quality and quantity and condition of agricultural products under such rules and regulations as  secretary of agriculture may prescribe the secretary promulgated a number of regulations pertaining to the inspection service there's and this is one of those regulations and the later parts of sixteen twenty two deal with out going inspections when the inspector never noted all the reasons well if you didn't know them how can we know secondly they sampled the first group that they tested  low level amounts intentional gold and raisins will have one hundred times that amount the second group tested thirty four sample units had absolutely no sulfur  criminal penalties criminal penalties for knowing and knowingly violating the inspection regulations both so they say in this case we yes right we can't waive a jurisdictional requirement like that we're not getting inspections under sixteen twenty two see you can't use sixteen twenty two sixteen twenty two then even if you could do sixteen twenty two does not allow the kone and penalties i