mistrusts i think the key issue though is the amendments that the maximum penalty shall be going to have the new penalties so well give the discretion to the secretary of treasury in any particular case to set the amount it does not by the wording of the statute allow the secretary to change the maximum what the maximum penalty would be the discretion is and what the counter should be on each individual case and that congress allowed a non willful penalty not shall not exceed ten thousand dollars but with reference to the willful penalty that ten thousand dollars shall be increased but again delegation but just in basic terms the statute authorizes the treasury department to charge penalty up to a certain amount right if the trigger was not obliged to apply the maximum in a particular case r on the treasury department you couldn't change it by modifying the form anyway no it was announcing to the public that there would be a higher penalty and the original regulation said well this piece was invalid so we're just gonna call it interpreter rule and we've kind of saw it in the court of federal regulations as has that is there any authority that that is the remedy when an agency violates rulemaking procedure well i think well well st of all i think that the comments have been made with respect to where the court looked at it was incorrect and i want to i think the record needs to be corrected here because we notice a proposed comment period or the regulation did not close until november of eighty six dollars so there was plenty of time to comment on the bill the statute which contained the or penalty so this is no surprise and should not have been any surprise that i can only if if if the regulation is adopting the that's huge for a penalty regime that's subject repealed what's your response to that treasury or government regardless of the delegation of authority is it not correct that if a statute used an agency some breath of discretion the agency can constrain its own discretion by regulation sure right  your position was there is a conflict between the regulation and the statute because if congress says you can include penalties up to x and agency is allowed to have a regulation that to say that the regulations will become invalid automatically this only you know your honor only to the extent that they are inconsistent with either the plain terms of the statute or the discretion within the statute that it will concur to the agency now there is discretion given to the secretary under the amended fact here the secretary has under the under the language of the amended statute the discretion whether to impose a civil circumstances we're going to go up to x amount of these other circumstances we're going to go to y at least other circumstances we're going to go to sea so you can understand what you could expect or force an action to look like with that regulation  different for different people and it's not always going to be the special but that's a valid exercise of this that's about exercise of bitters discretion then why if congress passes the statute and regulation reflecting the previous version of the statute there is no visible exercise of discretion here that indicates that for any reason the secretary thought that the previous maximum should re if it's by inadvertence that the secretary has an update of the prior regulation unless they're actually is a conflict between the existing regulation and the statute is shouldn't the regency be bound to its regulation ye there is really depends on the idea that there is a conflict and you think that there's a conflict because even though the secretary has allowed it individual cases to charge less than the maximum the secretary is not allowed to say in one hundred one thousand dollars or so it would be it would be a penny for the secretary it would be ok for the secretary to only charge one hundred thousand dollars in every case and never go to the maximum security just can't say that he's going to do that in a regulation increase just says the maximum penalty is going to be increased to that so your argument really depends on the idea that when congress sets a maximum penalty an agency can't exercise its discretion  an earlier or different statute would that make a difference isn't really the only question whether there's a conflict between the existing regulation and the existing i think that's a fair statement i think that the conflict  are questions that we have kind of comes up in other areas of the law like you know there is this debate over dhaka as to whether whether the president doesn't have to exercise in force which is where should any particular case but there's an argument that it could have been mandated the maximum penalty it could have withdrawn delegation order providing incentives treasury and sins and withdraw their delegation orders and take control of the amount but they did and we said no we're going to leave it to the discretion of the treasury entrance and penalties up to the maximum as long as they're assessing penalties within that maximum they are within the regulatory right and so we believe according to what language what language would you say congress would have used if they were if you say they could have mandated the maximum penalty what would the amendment have said other than the maximum penalty shall be how much what other words would you use to make it mandatory the maximum well if the concern is that the treasury is exercising discretion to the statutory maximum so i don't see that discretion as somehow undoing the fact that they made the maximum itself overall maybe a tory but i think it comes down to the delegation orders and  intent behind that which was to provide treasury with the with the wherewithal to assess the penalties and you know if i meet chris regulation change the  earlier which was that congress could pass a law and if it creates a direct conflict with the regulation the regulation would be invalid but congress if it didn't like the existing regulations could also just