[00:00:00] Speaker 00:
Case number 20-1242 et al.

[00:00:03] Speaker 00:
New York Stock Exchange LLC et al.

[00:00:05] Speaker 00:
Petitioners vs. Securities and Exchange Commission.

[00:00:09] Speaker 00:
Mr. Mishkin for the petitioners.

[00:00:11] Speaker 00:
Mr. Totaru for the respondents.

[00:00:13] Speaker 04:
Mr. Mishkin, good morning.

[00:00:15] Speaker 04:
Please proceed.

[00:00:16] Speaker 05:
Good morning.

[00:00:17] Speaker 05:
Thank you, Your Honor, and may it please the Court.

[00:00:20] Speaker 05:
The national market system plan amendments at issue should be vacated because they are unlawful rules that were promulgated without following required rulemaking procedures.

[00:00:33] Speaker 01:
Don't you have a jurisdictional question before you get to that?

[00:00:41] Speaker 05:
Yes, I'm happy to address that, Your Honor.

[00:00:43] Speaker 01:
I wish you would, because if we don't have jurisdiction, we don't need to know anything else.

[00:00:50] Speaker 05:
Go ahead, please.

[00:00:51] Speaker 05:
The jurisdictional question fundamentally is whether this was rulemaking here.

[00:00:55] Speaker 05:
If it was rulemaking, then the court has jurisdiction and we have every right to challenge that.

[00:00:59] Speaker 01:
It should be slightly different in phraseology, whether the rulemaking time limit applies or the order time limit applies.

[00:01:09] Speaker 01:
Commencement at 60 days, I guess, is the word.

[00:01:10] Speaker 01:
When it commences, that's really the issue, not whether it's rulemaking.

[00:01:16] Speaker 01:
If it were rulemaking under the guise of an order,

[00:01:20] Speaker 01:
you could have raised that in a petition to review of the order, and we'd have the merits in front of us.

[00:01:27] Speaker 01:
But since you didn't raise it timely under the ordering provision, are you properly here?

[00:01:34] Speaker 05:
Yes, and we think absolutely, yes, Your Honor, because we do think the question fundamentally is whether this was rulemaking, whether this was fundamentally a rule.

[00:01:43] Speaker 05:
The court confronts that question in different contexts and has to look at agency action and identify its substance and decide, was this in fact a rule?

[00:01:51] Speaker 05:
And if it was, I think the court's precedents are clear that we would be under Section 25B because we're supposed to apply APA principles and decide

[00:02:03] Speaker 01:
If it is, in fact, an order, you could have timely asked for review and raised that question to determine whether this is properly an order or whether it had improprieties in it for an order, but you didn't do that, did you?

[00:02:17] Speaker 05:
We didn't, Your Honor, and that's because we have the right to challenge it under 25B if the substance of this was rulemaking.

[00:02:23] Speaker 01:
Yeah, if you come out convincing us, but if we don't get to the question of whether it's rulemaking, it's styled an order.

[00:02:32] Speaker 01:
You knew it was styled an order.

[00:02:34] Speaker 01:
You had notice of what the commencement dates are for orders as opposed to rules.

[00:02:39] Speaker 01:
And you insist that you have the right to have gone with the rule for rules.

[00:02:47] Speaker 01:
But that doesn't explain why you did it.

[00:02:53] Speaker 01:
The fact that you think you have a right to do something, particularly with your disputable right, doesn't answer the question of why you did it.

[00:03:02] Speaker 01:
Why didn't you just bring it within the, it says it's an order.

[00:03:06] Speaker 01:
Why didn't you just go by what it said and challenge whether it's a proper order within the rules for orders?

[00:03:12] Speaker 05:
Your honor, the answer to that is that we thought we clearly had the right to challenge it as a, as a rule.

[00:03:17] Speaker 05:
And I would direct this.

[00:03:18] Speaker 01:
Do you think that's a good enough answer as to why you did something is because we thought we had the right to, you have, that's not a reason to tell you.

[00:03:31] Speaker 05:
Your Honor, I think that if we have the right to do it, then we are allowed to do it.

[00:03:37] Speaker 05:
And that's the point I'd like to focus the court on.

[00:03:39] Speaker 05:
I think that in the Watts case, for example, this court, the order there was styled as an order.

[00:03:46] Speaker 05:
But the court said we don't actually have jurisdiction under 25A.

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And I think what that shows is that the same as would be the case when this court confronts this question in other contexts is something actually an order or a rule.

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The court goes through a substantive analysis.

[00:04:01] Speaker 05:
And I think that the idea that we have to stick with what the commission said, and that if in fact it is not a rule, we must engage, we must indulge in the fiction, that it really was an order.

[00:04:15] Speaker 05:
I think that's a highly problematic result here, because you think about what that could, what that would result in, for example.

[00:04:21] Speaker 01:
That would mean- You seem to be eliminating the concept that there's maybe this is an order that has an impropriety in it, which would have invalidated it.

[00:04:32] Speaker 01:
That seems to be what this could have been.

[00:04:36] Speaker 01:
Why isn't that the answer to what it could have been rather than determining that it's styled an order, but it's really a rule?

[00:04:43] Speaker 05:
Because, Your Honor, that's not the way this court looks at the difference between orders and rules.

[00:04:47] Speaker 01:
When it looks at something- Do you think you know more about how the court looks at things than I do?

[00:04:50] Speaker 01:
I think I've been looking at them the way as part of this court for

[00:04:55] Speaker 01:
I understand, Your Honor.

[00:04:58] Speaker 05:
Respectfully, I would direct the court to, for example, National Association of Home Builders, which says we have not hesitated to consider an agency pronouncement issued without meeting required APA procedures a rule.

[00:05:12] Speaker 05:
And in that case, that was, if anything, a harder question because that was a question of

[00:05:16] Speaker 05:
about whether a pronouncement under the, whether, whether it counted under the regulatory flexibility act.

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And it said, in order to count, it had to be a rule that was promulgated according to certain procedures.

[00:05:28] Speaker 05:
And the court said, we don't hesitate to call that a rule.

[00:05:30] Speaker 05:
This wasn't a flawed, a flawed order.

[00:05:33] Speaker 05:
It was in substance a rule.

[00:05:35] Speaker 01:
So that, that's what I mean when I say it was an order, it was an order installing at least.

[00:05:41] Speaker 01:
And

[00:05:42] Speaker 01:
If it was not a proper order, then why wasn't the proper way to have determined the impropriety have been to petition for review of that order so that we could have the merits in front of us at that point?

[00:05:56] Speaker 01:
Did you ask us to look at the merits now when it's very questionable whether the merits are in front of us?

[00:06:02] Speaker 05:
Your honor, I think, yes, we could have done that as well.

[00:06:05] Speaker 05:
But our point is that because 25B gives this court jurisdiction,

[00:06:11] Speaker 05:
according to the rules set forth in 25B, because that gives court jurisdiction.

[00:06:16] Speaker 04:
Let me say this.

[00:06:16] Speaker 04:
I agree with Judge Sentel.

[00:06:20] Speaker 04:
You keep saying, yes, we could have done that.

[00:06:22] Speaker 04:
There was something you had to do when you got that order.

[00:06:26] Speaker 04:
And if you were so shocked that it was an order rather than a rule, then the first thing you should have done was challenge it and say, this is a rule, not an order.

[00:06:39] Speaker 04:
I mean, you lost your opportunity.

[00:06:41] Speaker 04:
And that's what statutes of limitations are for.

[00:06:46] Speaker 04:
You had every opportunity to say, you got it wrong, SEC.

[00:06:52] Speaker 04:
This is a rule rather than an order.

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But instead, you waited.

[00:06:58] Speaker 04:
And why you waited?

[00:07:03] Speaker 04:
We haven't heard, but your argument, well, we had a right to challenge the nature of it.

[00:07:11] Speaker 04:
Yes, but you had to do it in a timely way.

[00:07:15] Speaker 05:
Your honor, let me try to explain it like this.

[00:07:19] Speaker 05:
I think if the conclusion is that it can only be challenged as an order, I don't think that can be the right answer.

[00:07:28] Speaker 05:
because of what that would mean.

[00:07:30] Speaker 05:
That would mean that the commission could take something that was plainly a rulemaking and could characterize it as an order and never give notice.

[00:07:44] Speaker 04:
I mean, you could have come up here in this 60 day period that you missed by five days or whatever and said,

[00:07:53] Speaker 04:
you know, circuit court, please look at this.

[00:07:56] Speaker 04:
This is a rule rather than an order and send it back.

[00:08:00] Speaker 04:
And for the life of me, I don't know why you waited, but here you are.

[00:08:06] Speaker 05:
But your honor, I don't, I think the implication of that is that this court doesn't have jurisdiction under 25B.

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And that's what I'm disputing.

[00:08:16] Speaker 05:
I think the court does have jurisdiction under 25B because it is a very familiar exercise

[00:08:22] Speaker 05:
for this court to tell the difference between orders and rules.

[00:08:25] Speaker 01:
And if it was a rule... But the timing requirements on this have been held to be jurisdictional.

[00:08:32] Speaker 01:
So if we're looking at the rules as to when the time begins for the order, it's not timely.

[00:08:39] Speaker 01:
We don't have jurisdiction.

[00:08:43] Speaker 01:
You didn't meet the jurisdictional requirement.

[00:08:46] Speaker 05:
Well, I think the court does, because again, if it is in fact substantively rulemaking,

[00:08:51] Speaker 05:
then the court can treat it as such, and it would have jurisdiction according to the rules under under 25.

[00:08:56] Speaker 01:
When we get to the question of whether it's substantively wrong or not, if we don't have jurisdiction.

[00:09:03] Speaker 01:
Because I'm not this this initial question here that your reasoning in the circle.

[00:09:09] Speaker 05:
Well, I don't think so, Your Honor, because we're not asking to get to the analysis of whether it was right or wrong fully.

[00:09:16] Speaker 05:
We're asking a threshold question about whether this is properly in one bucket or the other.

[00:09:22] Speaker 05:
And I would say that this court has done that test again and again.

[00:09:25] Speaker 01:
Have we ever done that where this was the issue?

[00:09:30] Speaker 01:
This question of whether being out of time for an order for an action styled as an order,

[00:09:40] Speaker 01:
whether being out of time for that is okay, because you decided you were going to have it asked to be given as a rule.

[00:09:47] Speaker 01:
If we had any case, it's really parallel to that.

[00:09:49] Speaker 05:
No, not specifically with regard to timing, but the bucketing analysis is what drives the jurisdictional question here.

[00:09:57] Speaker 01:
And so what I... When you say that the court has lots of precedent, we don't have precedent on this issue at all, do we?

[00:10:04] Speaker 01:
Nobody ever asked us to do this before, did they?

[00:10:07] Speaker 05:
Well, the court not in the particular application of this timing, but I think it is a very fair that before us on this appeal.

[00:10:17] Speaker 01:
That's the first question on this motion to dismiss.

[00:10:20] Speaker 01:
The question is, the question of dismissal question is timing, and we don't have a case on that at all, do we?

[00:10:28] Speaker 05:
not specifically with regard to timing, but I know what the answer is.

[00:10:34] Speaker 05:
That's correct, your honor.

[00:10:36] Speaker 05:
But I think the other cases lead to one clear answer, because they all had the merits in front of them.

[00:10:45] Speaker 01:
The question now is whether we even have the merits, isn't it?

[00:10:49] Speaker 05:
I understand.

[00:10:49] Speaker 05:
But when the Congress makes a jurisdictional distinction, as it did in Section 25, between orders and rules,

[00:10:58] Speaker 05:
then this court necessarily has to confront whether something is in order or a rule, and that is an analysis, for example, that happened in Watts.

[00:11:07] Speaker 05:
It looked at whether something was really in order.

[00:11:09] Speaker 05:
Judge Urbina, it's not from this court, from the district court, Judge Urbina did that analysis.

[00:11:13] Speaker 05:
with respect to a jurisdictional question in in levy because whether it is properly considered to be an order or a rule, which will be a threshold question later for the merits, but whether it belongs in one bucket or another is what determines whether the court has jurisdiction.

[00:11:29] Speaker 05:
And I think it would be a very odd outcome if the commission could label something that substantively is rulemaking, call it an order, never publish it in the federal register, and then all of a sudden, and it could have all sorts of impacts on third parties.

[00:11:44] Speaker 03:
And then all of a sudden- But I guess, counsel, I don't think the questions that my colleagues have asked you have suggested that that could not be the ultimate result.

[00:11:56] Speaker 03:
The only question is, what's before us?

[00:12:00] Speaker 03:
And you are not arguing as some Supreme Court cases that where an agency acts so far beyond its authority that the court can constrain the agency.

[00:12:15] Speaker 03:
That's not this case.

[00:12:17] Speaker 03:
Even if we were to accept your suggestion that what was done here was so obviously not an order that the court would have no

[00:12:30] Speaker 03:
discretion, essentially, other than to agree with you.

[00:12:35] Speaker 03:
And you would have to come in a second proceeding.

[00:12:39] Speaker 03:
The only thing I could think of is you were trying to cut out sort of a middle proceeding because you were so confident you would win in the end, at least as to whether this should have been rulemaking rather than an order.

[00:12:54] Speaker 05:
Your honor, I think that this is, if you look at the cases that distinguish between orders and rules, some of them are closer because there are factors pointing in both directions.

[00:13:03] Speaker 05:
This is not a case where the factors pointed in both directions.

[00:13:08] Speaker 05:
If I could give the court this hypothetical just to try to underscore the point as to why this was so obviously rulemaking.

[00:13:15] Speaker 05:
And again, we think the case law is clear that if it was rulemaking, the court has jurisdiction, which is the question that we're focused on.

[00:13:25] Speaker 05:
But imagine a hypothetical.

[00:13:27] Speaker 05:
Imagine the commission one day had come out with a three-part order.

[00:13:31] Speaker 05:
And it said part one, SROs are limited in who their plan reps can be.

[00:13:36] Speaker 05:
Part two said the SROs are limited in what kind of information they can share internally.

[00:13:41] Speaker 05:
And part three said everybody in the world who interacts with the plans have to make certain disclosures.

[00:13:49] Speaker 05:
And a lot more occurred here.

[00:13:51] Speaker 05:
But imagine that was the order.

[00:13:52] Speaker 05:
I don't think that this court would have any hesitation

[00:13:56] Speaker 05:
in saying that the commission had engaged in, in rulemaking.

[00:13:59] Speaker 05:
I think that is more.

[00:14:01] Speaker 01:
Do you think that any lawyer in the world or why would any lawyer in the world wait past the deadline difference to bring that to us?

[00:14:11] Speaker 01:
Such a hypothetical has more to it than you may want it to cancel.

[00:14:17] Speaker 01:
That would raise the question we're raising with you.

[00:14:19] Speaker 01:
Why did the you not act?

[00:14:24] Speaker 01:
consistent with the rules, and it's only a five day difference.

[00:14:29] Speaker 01:
What in the world were you trying to do by putting this in that five day, what might best be called a gray zone?

[00:14:37] Speaker 05:
Your honor, we don't believe it's a gray zone.

[00:14:40] Speaker 05:
I think that the, if you look at- I don't believe that's an answer to my question.

[00:14:45] Speaker 01:
You're afraid of horribles.

[00:14:48] Speaker 01:
You got to make sure they're horrible.

[00:14:49] Speaker 01:
Would it be horrible for us to expect counsel to have affected an entity to bring the petition under what is applicable rule according to the name on the document before we ever get to the merits?

[00:15:08] Speaker 01:
I just don't find your hypothetical to be connected enough to the real world to have a lot to do with the answer to the question.

[00:15:16] Speaker 05:
My point is that it's a purely legislative, forward-looking determination.

[00:15:20] Speaker 05:
And if you look at, I think it's more clearly a rule than the enhancement findings in Safari Club.

[00:15:25] Speaker 01:
You're still arguing the merits and not the most.

[00:15:28] Speaker 05:
I guess, Your Honor, respectfully, we don't view when Congress creates a jurisdictional distinction at the outset, which cannot be driven by labeling.

[00:15:38] Speaker 05:
I think the court has no choice but to do the bucketing.

[00:15:41] Speaker 05:
And if that bucketing clearly leads to a conclusion that it's rulemaking, the court has jurisdiction.

[00:15:47] Speaker 05:
I don't know why the court would defer more.

[00:15:49] Speaker 05:
Let me leave the court with this thought.

[00:15:51] Speaker 05:
I don't know why the court would defer more to a commission characterization.

[00:15:56] Speaker 05:
in the context of rulemaking, in the context of a jurisdictional question, than it would in the context of anything else.

[00:16:04] Speaker 05:
And that would be the effect here.

[00:16:06] Speaker 05:
If the court is going to say that there is no jurisdiction,

[00:16:10] Speaker 05:
over something that the commission labels in order, which would be the effect of the implication of these questions, then I understand it's a different case.

[00:16:18] Speaker 05:
But what that would mean would be that the commission characterizes rulemaking as an order and deprives the public.

[00:16:25] Speaker 01:
It's not just deference.

[00:16:26] Speaker 01:
If we look at what's before us, it is an order unless we say it's not an order.

[00:16:30] Speaker 01:
So at the time you have to make your decision to take it, it's an order.

[00:16:34] Speaker 01:
It may turn out that we're going to say, no, it wasn't properly an order, but

[00:16:38] Speaker 01:
putting us into a circuitous reasoning here to say, well, it's not an order because we're going to say it's not an order, but it is an order until we say it's not an order.

[00:16:50] Speaker 01:
I don't know if I want to get on that circus council.

[00:16:54] Speaker 05:
Right.

[00:16:55] Speaker 05:
I think that when something has no components of a judiciary proceeding,

[00:17:01] Speaker 05:
and it is rulemaking in every way that it appears to be, then I think that the court has jurisdiction over that.

[00:17:09] Speaker 05:
I think that's exactly what 25B is saying.

[00:17:13] Speaker 04:
Can I ask you about rule 608D, which is the appeals.

[00:17:19] Speaker 04:
And of course, that's no longer timely, but wouldn't you, under D, could you proceed under D?

[00:17:32] Speaker 05:
I'm sorry, your honor.

[00:17:33] Speaker 05:
Can you, can you repeat that?

[00:17:35] Speaker 04:
The appeals, the commission may in its discretion entertain appeals in connection with the implementation or operation of any effective national market system plan as follows.

[00:17:47] Speaker 04:
And then it sets it out.

[00:17:49] Speaker 04:
I mean, could you have sort of stayed with the agency before

[00:18:00] Speaker 05:
Your honor, we viewed it as a final rule.

[00:18:03] Speaker 05:
So there was no need to take it up further with the agency.

[00:18:08] Speaker 05:
We think it's completely proper.

[00:18:10] Speaker 05:
If the agency engages in rulemaking, it can be challenged under 25B.

[00:18:14] Speaker 05:
So that's the route that we took.

[00:18:20] Speaker 05:
I see I'm over time.

[00:18:22] Speaker 05:
So I'd like to reserve a bit of time for rebuttal, but I'll yield at this point.

[00:18:29] Speaker 04:
Mr. Totaro.

[00:18:35] Speaker 02:
Your honors, and may it please the court, Martin Totaro on behalf of the Securities and Exchange Commission.

[00:18:41] Speaker 02:
Judge Santel is correct that petitioners seek to put the merits card before the jurisdictional force.

[00:18:46] Speaker 02:
Petitioners agree that these agencies were orders, but try to argue that they should have been rules.

[00:18:52] Speaker 02:
That argument could have been raised in a timely petition for review.

[00:18:56] Speaker 02:
but petitioners chose to file after the statutory deadline.

[00:19:00] Speaker 02:
As a result, the petition should be dismissed as untimely.

[00:19:05] Speaker 02:
I think the two best cases for us on this point are this court's decisions in British Caledonian and New Star.

[00:19:12] Speaker 02:
Although as Judge Santel noted, this issue doesn't arise a lot because the prudent thing to do would be to timely file, challenge the rule, and challenge it as unlawful.

[00:19:25] Speaker 02:
And so in British Caledonian, the court ruled that the agency, that because the agency issued an order pursuant to a regulatory scheme, the court would accept the agency's label of the order.

[00:19:37] Speaker 02:
It said, and this is on page 992, the order in question is what the agency states that it is, but that doesn't end the inquiry.

[00:19:45] Speaker 02:
The court then went on to decide that the order was invalid because it should have been done as a rulemaking.

[00:19:51] Speaker 02:
And so here, petitioners don't even get to that second step because they cannot satisfy the antecedent question of whether there's jurisdiction in the first place.

[00:20:01] Speaker 02:
And similarly in New Star, the court addressed whether an order was arbitrary and capricious because petitioners claimed that it should have been done through rulemaking.

[00:20:11] Speaker 02:
In both cases, the court asked not whether the order was actually a rule, but whether the order was invalid because it should have been done as

[00:20:22] Speaker 02:
Here the commission followed the plain text of rule 608B when it issued the orders on review.

[00:20:28] Speaker 02:
608B2 says that approval of national market system plan amendments initiated by industry shall be by order.

[00:20:37] Speaker 02:
Now 608B2 also says that the commission can make quote changes to a proposed amendment filed by stock exchanges that the commission deems necessary and appropriate.

[00:20:47] Speaker 02:
And that is precisely what happened here.

[00:20:50] Speaker 02:
industry proposed the amendments, the commission approved the proposals with changes and the commission issued the approvals by order.

[00:21:01] Speaker 02:
Petitioners did not seek review of those orders within 60 days of their entry and thus they are time barred as a matter of jurisdiction because they failed to satisfy the plain terms of section 25A.

[00:21:13] Speaker 02:
I'm happy to answer any questions this court might have

[00:21:20] Speaker 04:
I have one, Mr. Totaro.

[00:21:22] Speaker 04:
If we rule with you, these are fairly far reaching changes that the commission made.

[00:21:33] Speaker 04:
Would it be open to the SROs, two of them at least, to propose amendments that either got rid of these changes or

[00:21:49] Speaker 04:
wanted a second chance to explain why they are so far reaching.

[00:21:57] Speaker 02:
Judge Henderson, you are correct.

[00:21:58] Speaker 02:
So under rule 608A1, any two or more self-regulatory organizations acting jointly may file a proposed amendment.

[00:22:07] Speaker 02:
And nothing in this court's decision dismissing the petitions as untimely would prevent the exchanges from complying with that part of the regulation.

[00:22:18] Speaker 04:
All right, thank you.

[00:22:20] Speaker 04:
If there are no questions, Judge Santel?

[00:22:25] Speaker 04:
Judge Rogers?

[00:22:27] Speaker 04:
No.

[00:22:28] Speaker 04:
And Judge Santel, all right.

[00:22:29] Speaker 04:
Well, we have your argument.

[00:22:31] Speaker 01:
No question.

[00:22:31] Speaker 04:
Fine.

[00:22:32] Speaker 04:
All right.

[00:22:32] Speaker 04:
We have your argument, Mr. Totelo.

[00:22:34] Speaker 04:
Thank you.

[00:22:35] Speaker 04:
Thank you, guys.

[00:22:37] Speaker 04:
Mr. Michigan, if you want to take a minute, go ahead.

[00:22:42] Speaker 05:
Yes.

[00:22:43] Speaker 05:
Thank you, Your Honor.

[00:22:44] Speaker 05:
I think the flaw in the reasoning here

[00:22:49] Speaker 05:
is the idea that when this court is looking at whether something is an order or a rule, and it determines that it's rulemaking, that it considers it to be a flawed order.

[00:22:58] Speaker 05:
I think respectfully, that is not what we see in case after case.

[00:23:03] Speaker 05:
And I don't hear anything in what Mr. Totaro said that would address

[00:23:07] Speaker 05:
how this court approached this and National Association of Home Builders, which was to go to the substance to say that there was something that should have been done through rulemaking was not, and we're going to call it a rule.

[00:23:21] Speaker 05:
The answer was not that it was a flawed order.

[00:23:24] Speaker 05:
It was that we're going to call it a rule.

[00:23:26] Speaker 05:
And I think that what that reflects is that this court looks to the substance of what the action actually was.

[00:23:33] Speaker 05:
That's not the merits question here.

[00:23:34] Speaker 05:
The merits question would be, OK, if it's a rule, did they go through the right procedures?

[00:23:38] Speaker 05:
I think it's a discrete initial question.

[00:23:40] Speaker 05:
And I think it's an inevitable question when you have the two sections.

[00:23:45] Speaker 05:
And again, I watch shows that this court does not defer to an agency label.

[00:23:50] Speaker 05:
We know that from all of these cases.

[00:23:53] Speaker 05:
And I think if the court were to permit the deprived self of jurisdiction over something that's challenged in the right way for a rule, that would lead to mischief because then the commission could not give notice to people affected by something, never publish it, wait 60 days,

[00:24:10] Speaker 05:
And then the time would run on their theory, even though it was rules.

[00:24:14] Speaker 05:
Even though rules are rules and it would be unmistakably a rule, I think that would be the wrong result.

[00:24:20] Speaker 04:
You are wrong about that because they are required to be published in the Federal Register.

[00:24:25] Speaker 04:
And if they are not, then they are not effective.

[00:24:28] Speaker 04:
But we've got your argument.

[00:24:30] Speaker 04:
So thank you, counsel.