source: Caselaw Access Project

author: DYK, Circuit Judge.

license: Public Domain

text:
    MID CONTINENT NAIL CORPORATION, Plaintiff-Appellant v. UNITED STATES, Dubai Wire FZE, Itochu Building Products Co., Inc., Defendants Precision Fasteners, LLC, Defendant-Appellee
    2016-1426
    United States Court of Appeals, Federal Circuit.
    Decided: January 27, 2017

      David AlbeRT Yocis, Picard Kentz & Rowe LLP, Washington, DC, argued for plaintiff-appellant. Also represented by Andrew William Kentz, Roop Bhatti, Meix-uan Li, Douglas KNOX Bemis, Jr.
    MiChael Paul House, Perkins Coie, LLP, Washington, DC, argued for defendant-appellee. Also represented by David John Townsend, David Stewart Christy, Jr.
    Before NEWMAN, LOURIE, and DYK, Circuit Judges.
   DYK, Circuit Judge.

In 2012, the Department of Commerce issued a final determination in an anti-dumping investigation of certain steel nails from the United Arab Emirates (“UAE”) finding that Precision Fasteners, LLC had engaged in targeted dumping and imposed a duty. In calculating Precision’s dumping margin, Commerce declined to apply a regulation limiting the use of the average-to-transaction methodology to non-targeted sales because the agency asserted that the regulation had been withdrawn in 2008. See 19 C.F.R. § 351.414(f)(2) (2008).

The Court of International Trade (“Trade Court”) held that Commerce had violated the Administrative Procedure Act (“APA”) by withdrawing the regulation without providing notice and opportunity for comment. On remand, Commerce redetermined Precision’s duty by applying the withdrawn regulation and found that no duty was owing. The Trade Court affirmed. We hold that Commerce violated the requirements of the APA in withdrawing the regulation, leaving the regulation in force; that its violation of the APA was not harmless; and that the agency did not err in applying the regulation on remand. We therefore affirm the final judgment of the Trade Court.

BACKGROUND

I

In 2011, appellant Mid Continent Nail Corp. filed a petition with Commerce alleging that “imports of certain steel nails from the UAE ... [were being] sold in the United States at less than fair value, ... and that such imports [were] materially injuring, or threatening material injury to, an industry in the United States.” Certain Steel Nails From the United Arab Emirates: Initiation of Antidumping Duty Investigation, 76 Fed. Reg. 23,559, 23,560 (Apr. 27, 2011). Commerce initiated an an-tidumping investigation during which it determined that appellee Precision was among the mandatory respondents, ie., an importer whose dumping rate would be individually determined in the course of the investigation. See Certain Steel Nails From the United Arab Emirates: Preliminary Determination, 76 Fed. Reg. 68,129 (Nov. 3, 2011). In 2012, Commerce issued an antidumping duty order imposing a 2,51 percent duty on Precision. See Certain Steel Nails From the United Arab Emirates: Final Determination, 77 Fed. Reg. 17,029, 17,031-32 (Mar. 23, 2012); Certain Steel Nails from the United Arab Emirates: Amended Final Determination, 77 Fed. Reg. 27,421, 27,422 (May 10, 2012).

Commerce found that Precision had engaged in “targeted dumping” because Precision’s sales reflected a “pattern of export prices ... that differed] significantly among certain customers, regions, and time periods.” 77 Fed. Reg. at 17,031; see also 19- U.S.C. § 1677f—1 (d)(1)(B)(i); U.S. Steel Corp. v. United States, 621 F.3d 1351, 1359 (Fed. Cir. 2010). And, central to this appeal, the agency proceeded to calculate Precision’s dumping margin by applying the average-to-transaction methodology to all U.S. sales reported by Precision, irrespective of whether the agency had deemed a sale to be targeted or not. See 77 Fed. Reg. at 17,031.

The average-to-transaction methodology is one of the three methods that Commerce may use in an investigation to calculate dumping margins in accordance with the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act (URAA), Pub. L. No. 103-465, 108 Stat. 4809 (1994). The statute provides that, in general, Commerce “shall determine whether ... subject merchandise is being sold in the United States at less than fair value” by either: (1) “comparing the weighted average of the normal values to the weighted average of the export prices (and constructed export prices) for comparable merchandise”; or (2) “comparing the normal values of individual transactions to the export prices (or constructed export prices) of individual transactions for comparable merchandise.” 19 U.S.C. § 1677f-l(d)(l)(A)(i)-(ii). These two methods are-respectively known as the “average-to-average” and “transaction-to-transaction” methodologies.

The statute permits Commerce to use a third method—the average-to-transaction methodology—if certain conditions are met. The average-to-transaction methodology “compar[es] the weighted average of the normal values to the export prices (or constructed export prices) of individual transactions for comparable merchandise.” Id. § 1677f-l(d)(l)(B). To calculate dumping margins using the average-transaction methodology, however, Commerce must find “a pattern of export, prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time,” (ie., targeted dumping) and explain “why such differences cannot be taken into account using” the first two methods. Id. § 1677f-l(d)(l)(B)(i)-(ii). In other words, Commerce must first conclude that a respondent is engaged in targeted dumping and explain why the. other two statutory methodologies fail to sufficiently account for it. See U.S. Steel, 621 F.3d at 1358-59.

In calculating dumping margins using the average-to-transaction methodology, Commerce has “historically” used a practice known as “zeroing” in which “negative dumping margins (ie., margins of sales of merchandise sold at nondumped prices) are given a value of zero and only positive dumping margins (i.e., margins for sales of merchandise sold at dumped prices) are aggregated.” Union Steel v. United States, 713 F.3d 1101, 1104 (Fed. Cir. 2013). As a result, “dumping margins for sales below normal value are not offset by ‘negative dumping margins’ for those sales made above normal value.” Corns Staal BV v. United States, 502 F.3d 1370, 1372 (Fed. Cir. 2007). This lack of offsetting leads to higher dumping margins when the average-to-transaction methodology is used, which has made calculation of margins using this methodology “controversial.” See Union Steel, 713 F.3d at 1104.

II

Shortly after the enactment of the URAA, Commerce promulgated a regulation through notice-and-comment rulemak-ing restricting the agency’s use of the average-to-transaction methodology. This regulation—known as the “Limiting Regulation”—provided that even in cases meeting the statutory criteria for applying the average-to-transaction methodology, the agency would “normally ... limit [its] application ... to those sales that constitute targeted dumping,” as opposed to applying the average-to-transaction methodology to all of a respondent’s sales. See 19 C.F.R. § 351.414(f)(2) (2008); see also Antidump-ing Duties; Countervailing Duties, Final Rule, 62 Fed. Reg. 27,296, 27,375 (May 19, 1997).

In 2008, however, Commerce withdrew the Limiting Regulation, along with several other regulations governing the agency’s handling of targeted dumping allegations. See Withdrawal of the Regulatory Provisions Governing Targeted Dumping in An-tidumping Duty Investigations, Interim Final Rule, 73 Fed. Reg. 74,930, 74,931 (Dec. 10, 2008) [hereinafter Withdrawal Notice]. The agency stated that it had originally promulgated the regulations “without the benefit of any experience on the issue of targeted dumping,” and that the regulations “may have established thresholds or other criteria that ... prevented the use of [the average-to-transaction] methodology to unmask dumping, contrary to the [congressional intent.” Id. Commerce noted that withdrawal would allow the agency to gain “additional experience” with targeted dumping through “case-by-case adjudication.” Id.

Commerce acknowledged in Withdrawal Notice that repeal of the targeted dumping regulations was subject to “the requirement to provide prior notice and opportunity for public comment, pursuant to ... 5 U.S.C. § 553(b)(B),” but expressly “waive[d] the requirement” by invoking the APA’s “good cause” exception to notice-and-comment rulemaking. 73 Fed. Reg. at 74,931.

In finding good cause, Commerce explained that notice-and-comment rulemak-ing was “impracticable and contrary to the public interest” because the rescinded regulations were “applicable to ongoing anti-dumping investigations” and that “immediate revocation [was] necessary to ensure the proper and efficient operation of the antidumping law[s].” Id. At no point in Withdrawal Notice did Commerce refer to any prior notices proposing to withdraw the Limiting Regulation, or otherwise suggest that the agency had provided adequate notice and opportunity for comment under the APA.

In calculating Precision’s dumping margin three years later in this proceeding, Commerce applied the average-to-transaction methodology, having found both “a pattern of export prices ... that differed] significantly among customers, regions, or by time-period,” and that applying the “average-to-average methodology mask[ed] differences in the patterns of prices between the targeted and non-targeted groups.” 77 Fed. Reg. at 17,031. In this appeal, no party has challenged Commerce's determination that the statutory criteria for applying the average-to-transaction methodology were met. What the parties dispute is the agency’s decision to apply the average-to-transaction methodology not just to “those sales that constitute[d] targeted dumping,” as the Limiting Regulation had previously provided, but “to all U.S. sales reported by ... Precision.” See id. (emphasis added).

Ill

Precision challenged Commerce’s final determination in the Trade Court. See Mid Continent Nail Corp. v. United States (Mid Continent I), 999 F.Supp.2d 1307, 1309-10 (Ct. Int’l Trade 2014). In relevant part, Precision argued that Commerce was required to apply the Limiting Regulation to calculate Precision’s dumping margin because the agency’s repeal of the regulation in “Withdrawal Notice was ineffective and contrary to law,” as it had “occurred outside the basic procedural framework required by Congress under the [APA].” Id. at 1319-20. According to Precision, had the agency applied the Limiting Regulation, application of the average-to-transaction methodology to all of Precision’s domestic sales would not have been “justified]” because the agency had “only found evidence of targeting for less than one percent” of Precision’s U.S. sales, the exact scenario that had concerned Commerce when it adopted the Limiting Regulation in the first place. Id. at 1319.

The Trade Court agreed that Commerce’s withdrawal of the Limiting Regulation violated the APA. After concluding that withdrawal of the regulation was subject to notice-and-comment rulemaking, the court rejected the argument that the agency had provided adequate notice and opportunity for comment through two earlier Federal Register notices because those notices had not proposed to repeal the regulation. See id. at 1322. The court also rejected Commerce’s invocation of good cause and found that the agency’s procedural default was not excusable as harmless error. See id. Accordingly, the Trade Court remanded Commerce’s final determination and instructed the agency to “redetermine [Precision’s] dumping margin[ ] by applying the Limiting Regulation.” Id. at 1323.

IV

On remand, Commerce applied the Limiting Regulation as ordered by the Trade Court. As the regulation provided that Commerce would “normally” not apply the average-to-transaction methodology to all sales, see 19 C.F.R. § 351.414(f)(2) (2008), the agency concluded that application of the average-to-transaction methodology to all of Precision’s sales was unwarranted because “the record does not contain evidence to suggest that this normal limitation should not be applied.” J.A, 89. As a consequence of limiting the average-to-transaction methodology to only targeted sales, Commerce found that Precision’s dumping margin was “de minimis,” and therefore imposed a duty of 0.00 percent. Id.

Mid Continent appealed Commerce’s remand redetermination to the Trade Court, arguing that the agency had misapplied the Limiting Regulation. See Mid Continent Nail Corp. v. United States (Mid Continent II), 113 F.Supp.3d 1318, 1326 (Ct. Int’l Trade 2015). The court rejected Mid Continent’s argument and affirmed Commerce’s remand redetermination. See id. at 1327-28, 1331. Mid Continent then filed this appeal, which Commerce has not joined. We have jurisdiction under 28 U.S.C. § 1295(a)(5).

V

During the pendency of the Trade Court proceedings, and in light of the court’s ruling that Withdrawal Notice was ineffective to repeal the Limiting Regulation, Commerce in 2013 initiated a new proceeding to accomplish the repeal. The agency published a Notice of Proposed Rulemak-ing (“NPRM”) in which it sought comments on a proposal “not to apply ... the previously withdrawn regulatory provisions governing targeted dumping.” Non-Application of Previously Withdrawn Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations, Proposed Rule, 78 Fed. Reg. 60,240, 60,240 (Oct. 1, 2013). In 2014, Commerce issued a final rule making withdrawal of the regulations effective May 22, 2014. See 79 Fed. Reg. 22,371 (Apr. 22, 2014). No party to this appeal has challenged the 2014 withdrawal, or contended tjpe&t it should be applied retroactively. Accordingly, this case solely addresses whether the withdrawn regulations were in effect during the period between December 10,2008, and May 22, 2014.

Discussion

We review the Trade Court’s decision to uphold Commerce’s remand rede-termination de novo. See U.S. Steel, 621 F.3d at 1357. We will affirm the agency unless its decision “is unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). “Commerce’s decision will [also] be set aside if it is arbitrary and capricious.” Changzhou Wujin Fine Chem. Factory Co. v. United States, 701 F.3d 1367, 1374 (Fed. Cir. 2012).

We do not defer to an agency’s interpretation of the APA’s statutory requirements, although the statute itself presumes that review of agency action under the arbitrary-and-capricious standard is “highly deferential.” Natl Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1372 (Fed Cir. 2001); see also Collins v. Nat'l Transp. Safety Bd., 351 F.3d 1246, 1253 (D.C. Cir. 2003) (“For generic statutes like the APA, ... the broadly sprawling applicability undermines any basis for deference, and courts must therefore review interpretative questions de novo.”); Mobil Oil Corp. v. Dep’t of Energy, 728 F.2d 1477, 1486-87 (Temp. Emer. Ct. App. 1983) (“We are free to make an independent determination of the legal question as to whether the agency has made a showing of good cause.”).

I

We first address Mid Continent’s contention that Commerce provided adequate notice for the repeal of the Limiting Regulation through two Federal Register notices issued in 2007 and 2008: (1) Targeted Dumping in Antidumping Investigations; Request for Comment, 72 Fed. Reg. 60,651 (Oct. 25, 2007) [hereinafter Request for Comment]; and (2) Proposed Methodology for Identifying and Analyzing Targeted Dumping in Antidumping Investigations; Request for Comment, 73 Fed. Reg. 26,371 (May 9, 2008) [hereinafter Proposed Methodology]'.

A

The requirement that an agency provide adequate notice before altering its regulations is rooted in the APA’s provisions governing the administrative rule-making process. Under the APA, whenever an agency decides to “formulat[e], amend[ ], or repeal[ ] a rule,” it must first publish an NPRM setting forth “either the terms or substance of the proposed rule[,] or a description of the subjects and issues involved.” 5 U.S.C. §§ 553(b), 551(5). For the purposes of notice and comment, withdrawal or repeal of an existing regulation is treated the same as promulgation of a new regulation. See Tunik v. MSPB, 407 F.3d 1326, 1342 (Fed. Cir. 2005). Although the notice “need not specify every precise proposal which [the agency] may ultimately adopt,” it “must be sufficient to fairly apprise interested parties of the issues involved.” Nuvio Corp. v. FCC, 473 F.3d 302, 310 (D.C. Cir. 2006) (quoting Action for Children’s Television v. FCC, 564 F.2d 458, 470 (D.C. Cir. 1977)). Adequate notice “is crucial to ‘ensure that agency regulations are tested via exposure to diverse public comment, ... to ensure fairness to affected parties, and ... to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.’” Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 626 F.3d 84, 95 (D.C. Cir. 2010) (quoting Int’l Union, United Mine Workers of Am. v. Mine Safety &. Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005)).

The dispositive question in assessing the adequacy of notice under the APA is whether an agency’s final rule is a “logical outgrowth” of an earlier request for comment. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007); Veteran’s Justice Grp., LLC v. Sec’y of Veterans Affairs, 818 F.3d 1336, 1344 (Fed. Cir. 2016).

The logical outgrowth doctrine recognizes that a certain degree of change between an NPRM and a final rule is inherent to the APA’s scheme of rulemak-ing through notice and comment. See Int’l Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 n.51 (D.C. Cir. 1973). Accordingly, judicial formulations of the doctrine have sought to “balance” the values served by adequate notice, see Int’l Union, 626 F.3d at 94-95, with “the public interest in expedition and finality.” Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983). We recently stated, for instance, that “[a] final rule is a logical outgrowth of a proposed rule only if interested parties should have anticipated that the change was possible, and thus reasonably should have filed their comments on the subject during the notice- and-comment period.” Veteran’s Justice, 818 F.3d at 1344 (alterations and internal quotation marks omitted).

Courts have consistently upheld final rules as logical outgrowths “where the NPRM expressly asked for comments on a particular issue or otherwise made clear that the agency was contemplating a particular change.” CSX Transp. Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1081 (D.C. Cir. 2009) (citing Owner-Operator Indep. Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 494 F.3d 188, 209-10 (D.C. Cir. 2007); and City of Portland v. EPA, 507 F.3d 706, 715 (D.C. Cir. 2007)); see also, e.g., Alto Dairy v. Veneman, 336 F.3d 560, 570 (7th Cir. 2003) (upholding final rule prohibiting “paper pooling” of milk producers with “distant supply plants” because agency’s notice raised the issue of “pool” eligibility); Public Service Commission v. FCC, 906 F.2d 713, 715 (D.C. Cir. 1990) (final rule was logical outgrowth because board affiliated with the agency asked for comments on the proposal that was finally adopted, even though the agency itself did not).

Courts applying the logical outgrowth doctrine have also permitted agencies to drop critical elements of proposed rules even if a resulting final rule effectively abandons an agency’s initial proposal. In Long Island Care, for example, the Department of Labor proposed a rule that would have rendered certain “companionship workers” outside the exemption to wage and hour restrictions under the Fair Labor Standards Act (“FLSA”). See 551 U.S. at 174-75, 127 S.Ct. 2339. The rule the agency eventually adopted, however, left these workers within the FLSA’s exemption. The Court sustained the agency’s final rule, observing that “[s]ince the proposed rule was simply a proposal, its presence meant that the Department was considering the matter; after that consideration the Department might choose to adopt the proposal or to withdraw it.” Id. at 175, 127 S.Ct. 2339. Because this result was “reasonably foreseeable,” the Court held that the agency had complied vrith notice-and-comment rulemaking. Id.

Nonetheless, there are limits to how far a notice of proposed rulemaking may be stretched under the logical outgrowth doctrine. In some cases, these limits may be difficult to discern, Kooritzky v. Reich, 17 F.3d 1509, 1513 (D.C. Cir. 1994), but certain clear lines have been drawn. “The logical outgrowth doctrine does not extend to a final rule that finds no roots in the agency’s proposal because something is not a logical outgrowth of nothing, ... [or] where interested parties would have had to divine the agency’s unspoken thoughts, because the final rule was surprisingly distant from the [algenc/s proposal.” Envtl. Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005) (internal quotation marks and citations omitted).

B

Having summarized the principles animating the logical outgrowth doctrine, we turn to whether Commerce’s repeal of the Limiting Regulation in Withdrawal Notice was a logical outgrowth of Request for Comment and Proposed Methodology. The Trade Court determined that the notices were insufficient because neither notice made “obvious to an interested observer that ... rule making [to withdraw the rule was] intended” by the agency. Mid Continent I, 999 F.Supp.2d at 1322. We agree.

We begin with the statute. The Tariff Act as amended by the URAA obligates Commerce to make two findings before the agency may use the average-to-transaction methodology to assess targeted dumping in an investigation. First, the agency must find “a pattern of export prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time.” 19 U.S.C. § 1677f-l(d)(l)(B)(i). Second, Commerce must “explain! ] why such differences cannot be taken into account using” the other two statutory methods. Id. § 1677f-l(d)(l)(B)(ii).

Once these criteria are met, however, the statute leaves undefined the precise scope of Commerce’s application of the average-to-transaction methodology; this led to concerns that if a respondent had been found to be engaged in targeted dumping, but only in some limited fashion, application of the methodology to “all of [the respondent’s] sales ... would be unreasonable and unduly punitive.” See Anti-dumping Duties; Countervailing Duties, 61 Fed. Reg. 7308, 7350 (Feb. 27,1997). Commerce responded to these concerns by promulgating the Limiting Regulation, which provided that the agency would “normally limit the application of the average-to-transaction method[ology] to those sales that constitute targeted dumping.” 19 C.F.R. § 351.414(f)(2) (2008). Thus, even if the agency had found a respondent to have engaged in targeted dumping—a condition precedent to the agency’s use of the average-to-transaction methodology—under the Limiting Regulation, Commerce would “normally” limit the scope of the average-to-transaction methodology to the respondent’s targeted sales—instead of all sales.

Ten years after promulgating the Limiting Regulation, Commerce published Request for Comment, in which the agency sought guidance regarding an appropriate test to determine the existence of targeted dumping. In this notice, Commerce admitted that it had accrued only “limited experience with targeted dumping” despite the intervening years; that it had yet to develop a standard targeted dumping test; and that its “experience with regard to the use of the [average-to-transaction] method ha[d] been very limited.” 72 Fed. Reg. at 60,651. By publishing Request for Comment, Commerce hoped to solicit the public’s views on “its development of a methodology for determining whether targeted dumping is occurring in antidumping investigations,” and “input on standards and tests that may be appropriate in a targeted dumping analysis.” Id. Specifically, the agency sought guidance on: (1) how to determine the existence of a “pattern of export prices ... among purchasers, regions, or periods of time”; (2) how to determine if such a pattern “differfs] significantly”; and (3) the “appropriate statistical techniques” to assess targeted dumping. Id.

Despite raising these concerns, Request for Comment was not published in the Federal Register as an NPRM, meaning that the notice on its face did not indicate that Commerce was considering a rule-making. More problematically, Request for Comment did not propose any kind of rule or raise any question about the scope of the average-to-transaction methodology, much less the conditions under which the agency should depart from its “normal” practice of not applying the methodology to all sales. Request for Comment did not even include a citation to the Limiting Regulation. Instead, in Request for Comment, Commerce simply sought information on the broad issue of how the agency should determine the existence of targeted dumping—a distinct, predicate issue to the problem addressed by the Limiting Regulation (ie., the scope of the average-to-transaction methodology).

The consequence of these deficiencies is that Request for Comment falls short of satisfying the APA’s requirements for notice and opportunity for comment. We find the D.C. Circuit decision in Kooritzky to be instructive on this point. At issue in Kooritzky was a “no-substitution” rule promulgated by the Department of Labor that prohibited employers from substituting one alien for another with respect to certifications necessary for obtaining employment-based visas. See 17 F.3d at 1512. In a notice of proposed rulemaking to implement then-recent statutory amendments, the agency made no mention of substitution. Id. at 1513. In rejecting the agency’s NPRM as inadequate, the D.C. Circuit observed that the “notice ... contained] nothing, not the merest hint, to suggest that the [agency] might tighten its existing practice of allowing substitution,” and that the preamble to the agency’s notice in the Federal Register “offered no clues” to a “nonexpert reader ... of what was to come.” Id.

Like the notice at issue in Kooritzky, Request for Comment gave no indication that Commerce was contemplating a potential change in the Limiting Regulation. Nor did commentators responding to Request for Comment perceive the agency to be raising the issue of the regulation’s repeal or revision, or suggest such repeal or revision themselves. We therefore have no doubt that Commerce’s repeal of the Limiting Regulation was not a logical outgrowth of Request for Comment because, as in Kooritzky, “[something is not a logical outgrowth of nothing.” 17 F.3d at 1513.

C

Six months after Request for Comment, Commerce—still concerned with the appropriate test for determining the existence of targeted dumping—proposed a new two-part test addressing the problem in Proposed Methodology. This second notice acknowledged the responses that Commerce had received following Request for Comment, but did not offer the agency’s response thereto. See Proposed Methodology, 73 Fed. Reg. at 26,371. In addition to seeking new comments on its proposed test for determining the existence of targeted dumping, Commerce also raised several “related issues.” Id. In particular, the agency “requested] comment on the application of the [average-to-transaction methodology] and the conditions, if any, under which the [average-to-transaction] methodology should apply to all sales to the target, even if some sales of a control number do not pass the targeted dumping test.” Id. at 26,372 (emphasis added).

Proposed Methodology thus presents a closer question under the logical outgrowth doctrine than Request for Comment. The Limiting Regulation had provided that Commerce would “normally” apply the average-to-transaction methodology only to “those sales” found to “constitute targeted dumping.” 19 C.F.R. § 351.414(f)(2) (2008). Therefore, by seeking public comment on “the conditions, if any,” under which the average-to-transaction methodology should be applied to all sales made by a respondent—instead of just the respondent’s targeted sales— Commerce effectively raised the general subject of the Limiting Regulation, perhaps suggesting wholesale elimination of the agency’s discretion to apply the average-to-transaction methodology to all sales.

Although courts have found logical outgrowths when an NPRM “expressly asked for comments on a particular issue or otherwise made clear that the agency was contemplating a particular change,” CSX, 584 F.3d at 1081, we do not think that this principle supports holding Proposed Methodology to have provided the “necessary predicate” for Withdrawal Notice. Kooritzky, 17 F.3d at 1513. For starters, like Request for Comment, Proposed Methodology oh its face did not indicate that further action to withdraw the Limiting Regulation was being considered. Instead, Proposed Methodology merely sought public views on how to interpret’the regulation itself—which provided that the agency would “normally” not apply the average-to-transaction methodology to all sales—that is, how exactly Commerce should apply the “normally” limitation. Because the agency had left the circumstancés in which it would have applied the average-to-transaction methodology to all sales largely undefined, “interested persons” would have perceived the question regarding the Limiting Regulation posed in Proposed Methodology as simply Commerce’s first step in clarifying the scope of its own regulation. Indeed, comments that the agency received in response to Proposed Methodology did not understand Commerce to be raising a broader question, i.e., whether to repeal the Limiting Regulation. See note 10, infra.

Posing such a general “scope” question does not suffice to provide the requisite “fair notice” for an agency rule to be upheld as a logical outgrowth. See Long Island Care, 551 U.S. at 174, 127 S.Ct. 2339. In CSX, the D.C. Circuit confronted a similar problem in addressing a rule promulgated by the Surface Transportation Board (“STB”) to resolve railroad rate disputes. The STB had originally proposed a rule allowing such disputes to be resolved using “comparison groups drawn from the most recent year of waybill sampling.” 584 F.3d at 1078. In the rule finally adopted, however, the agency “switched] from one year to four years’ worth of data.” Id. The STB argued that the final rule was a logical outgrowth because “mentionfing] ... the release of one-year data ... gave notice that the amount of data available ... might change.” Id. at 1082.

The D.C. Circuit rejected this argument for two reasons. First, the court observed that although the STB’s notice had proposed a number of related regulatory changes, “it nowhere even hinted that [the agency] might consider expanding the number of years from which comparison groups could be derived.” Id. Second, permitting the “mere mention” of the one-year timeframe for drawing comparison groups to provide adequate notice would allow the agency “to justify any final rule it might be able to devise by whimsically picking and choosing within the four corners of a lengthy ‘notice.’” Id. (quoting Envtl. Integrity Project, 425 F.3d at 998). “Such a rule would hardly promote the purposes of the APA’s notice requirement.” Id.

The same reasoning applies to Proposed Methodology. Despite mentioning the subject matter of the Limiting Regulation, Commerce’s primary purpose in the Proposed Methodology was to propose a new test for determining whether a respondent was engaged in targeted dumping and to seek public comment on this proposal. As a “related issue” the agency posed a general question of when to apply the average-to-transaction methodology to all sales, not just targeted sales. But this question did not raise the “particular issue” of withdrawing the Limiting Regulation; it sought only to clarify the meaning of the Limiting Regulation’s recitation of the word “normally.” And, as in CSX, allowing Commerce’s question in Proposed Methodology to provide adequate notice for Withdrawal Notice would permit the agency to adopt a final rule from a limitless continuum of regulatory actions. Given this range of possibilities, we cannot say that Commerce’s repeal of the Limiting Regulation was “reasonably foreseeable.” Long Island Care, 551 U.S. at 175, 127 S.Ct. 2339. It follows that neither Request for Comment nor Proposed Methodology provided adequate notice and opportunity for comment necessary for compliance with the APA.

D

Mid Continent argues that even if Commerce did not itself provide the required notice, comments made in response to Request for Comment and Proposed Methodology urged Commerce to apply the average-to-transaction methodology to “all sales” and thereby effectively raised the issue of repealing the Limiting Regulation.

Athough responses by commentators may be relevant to the court’s inquiry under the logical outgrowth doctrine, as a general matter, an agency “cannot bootstrap notice from a comment.” Fertilizer Inst. v. EPA, 935 F.2d 1303, 1312 (D.C. Cir. 1991). Here, the comments relied on by Mid Continent never urged Commerce to repeal the Limiting Regulation; commentators simply asked the agency to construe the regulation more or less broadly. Many of these comments simply urged Commerce to follow the approach the agency had set forth when it first promulgated the regulation in 1997, viz., that “in some instances, it may be necessary to apply the average-to-transaction methodology to all sales to the targeted area, ... or even to all sales of a particular respondent,” 62 Fed. Reg. at 27,375 (noting that such cases could encompass respondents engaged in “widespread” or “extensive[ ]” targeted dumping). See note 10, supra. And, the fact that comments responding to Request for Comment and Proposed Methodology were entirely silent on the issue of repealing the Limiting Regulation supports the conclusion that these notices were insufficient to render the agency’s actions in Withdratval Notice a “logical outgrowth.” See, e.g., Council Tree Commc’ns, Inc. v. FCC, 619 F.3d 235, 256 (3d Cir. 2010).

Finally, our conclusion that Withdrawal Notice is not a logical outgrowth of either Request for Comment or Proposed Methodology is further bolstered by four other considerations. First, Commerce never referred to Request for Comment or Proposed Methodology in Withdrawal Notice, nor responded to the comments it had received in response to the two earlier notices. Second, in Withdrawal Notice the agency did not adopt any of the proposals made by commentators, choosing instead to resolve the scope of the average-to-transaction methodology through “case-by-ease adjudication.” 73 Fed. Reg. at 74,931. Third, Commerce curiously requested further comments regarding its repeal of the Limiting Regulation in Withdrawal Notice, which suggests that the agency believed itself to not have secured adequate comments on the issue. In contrast, Commerce did not make a similar request for additional comments in its 2014 rulemaking to withdraw the Limiting Regulation. See 79 Fed. Reg. at 22,378. Last but not least, Commerce did not suggest in Withdrawal Notice that it had in fact complied with the APA by issuing the earlier notices. To the contrary, Commerce thought it necessary to invoke the APA’s good cause exception, which implies that the agency did not consider its prior notices to have satisfied the statute’s procedural requirements. Although the inconsistency of simultaneously invoking good cause and arguing post hoc compliance with the APA is not dispositive, the tension between these conflicting positions strongly supports our view that Commerce’s (and now, Mid Continent’s) assertion that the agency had complied with notice-and-comment rulemaking is not supportable.

In summary, we hold that Commerce’s repeal of the Limiting Regulation in Withdrawal Notice was not a logical outgrowth of Request for Comment and Proposed Methodology, and that agency failed to provide adequate notice under the APA.

II

We must now consider whether Commerce’s failure to provide adequate notice may be excused for good cause, the sole ground Commerce cited for dispensing with notice and comment in Withdrawal Notice. An agency may forgo notice- and-comment rulemaking for good cause if it “finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B).

As a general matter, exceptions to notice-and-comment rulemaking under the APA are “narrowly construed and only reluctantly countenanced.” Mobil Oil, 728 F.2d at 1490 (quoting New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980)). In Mobil Oil, we stated that an invocation of good cause requires an agency to show that delaying the rule at issue would create “a significant threat of serious damage to important public interests” as the exception would otherwise become an “all purpose escape-clause” to the APA’s rule-making provisions. Id. at 1492. Such “significant threat[s]” encompassed situations where the announcement of a proposed rule itself would “precipitate activity by affected parties that would harm the public welfare,” for example, price controls subject to predatory regulatory arbitrage or other market dislocations. Id. (citing Nader v. Sawhill, 514 F.2d 1064, 1068-69 (Temp. Emer. Ct. App. 1975)). Other courts have emphasized the need to find similarly serious threats in order to invoke the good cause exception. See, e.g., Mack Tracks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012) (citing “possible imminent hazard to aircraft, persons, and property” and rules of “life-saving importance” necessary to “stave off any imminent threat to the environment or safety or national security”); Haw. Helicopter Operators Ass’n v. FAA, 51 F.3d 212, 214 (9th Cir. 1995) (citing a “recent escalation of fatal air tour accidents”).

The requirement that an agency “incorporate! ] the finding and a brief statement of reasons” for good cause “in the rules issued” means that we are limited to examining the reasons Commerce cited in Withdrawal Notice to justify its invocation of good cause. See Mobil Oil Corp. v. Dep’t of Energy, 610 F.2d 796, 802-03 (Temp. Emer. Ct. App. 1979); see also N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 766-67 (4th Cir. 2012). Commerce cited two of the three available statutory grounds for invoking the good cause exception. First, the agency stated that notice and comment were “impracticable” because the Limiting Regulation was applicable to ongoing dumping investigations, and “immediate revocation [was] necessary to ensure the proper and efficient operation of the antidumping law and to provide the relief intended by Congress.” 73 Fed. Reg. at 74,931. Mid Continent relatedly asserts that dumping investigations are subject to statutory deadlines that cannot be extended at the agency’s discretion. See 19 U.S.C. §§ 1673b(b)(l)(A), 1673b(c), 1673d(a).

“Notice and comment on a rule may be found to be ‘impracticable’ when ‘the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings.’” N.C. Growers, 702 F.3d at 766 (quoting Nat’l Nutritional Foods Ass'n v. Kennedy, 572 F.2d 377, 384-85 (2d Cir. 1978)). Critically, we along with several other courts have held that statutory deadlines in and of themselves do not generally provide a basis for invoking good cause on the ground of impracticability. See, e.g., Shell Oil Co. v. Fed. Emer. Admin., 527 F.2d 1243, 1248 (Temp. Emer. Ct. App. 1975). But see Phila. Citizens in Action v. Schweiker, 669 F.2d 877, 885-86 (3d. Cir. 1982) (upholding good cause where Congress gave the agency only 49 days to promulgate regulations implementing a complex scheme of federally funded state benefits). A contrary rule would encourage administrative gamesmanship because “an agency unwilling to provide notice or an opportunity to comment could simply wait until the eve of á statutory, judicial, or administrative deadline, then raise up the ‘good cause’ banner and promulgate rules without following APA procedures.” Council of S. Mountains, Inc. v,. Donovan, 653 F.2d 573, 581 (D.C. Cir. 1981). In fact, the temporal exigency implied by Withdrawal Notice appears more theoretical than actual—as Mid Continent observes, Commerce did not have occasion to apply the Limiting Regulation’s withdrawal until eight months after Withdrawal Notice, and did not issue a .final determination relying on the withdrawal until fifteen months later. Thus, the fact that Commerce would have had to apply the Limiting Regulation to ongoing investigations cannot constitute a basis for good cause excusing its failure to go through notice and comment.

Second, Commerce invoked the good cause exception on the ground that notice was “contrary to the public interest” because the agency’s application of the Limiting Regulation “may have ... prevented the use of [the average-to-transaction] methodology to unmask dumping.” 73 Fed. Reg. at 74,931. This argument, however, is again foreclosed by precedent because an assertion of mere pocketbook (or balance-sheet) harm to regulated entities is generally not sufficient to establish good cause as nearly every agency rule imposes some kind of economic cost. See Mack Trucks, 682 F.3d at 95 (contrasting such economic harms with a situation “in which an entire industry and its customers [are] imperiled”). As the Trade Court observed, the denial of regulatory relief in this case is not the sort of “pressing urgency of a type that does not always exist in the trade context.” Mid Continent I, 999 F.Supp.2d at 1323 (citing Gold East Paper (Jiangsu) Co. v. United States, 918 F.Supp.2d 1317, 1327 (Ct. Int’l Trade 2013)). Thus, Commerce did not show a public interest consideration sufficient to support the agency’s invocation of good cause.

On appeal, Mid Continent offers a new justification for good cause that Commerce did not adopt in Withdrawal Notice. Citing Commerce’s statement that the “effect” of the agency’s targeted dumping regulations was “to deny relief to domestic industries,” and that this effect was “inconsistent with the [agency’s] statutory mandate to provide [such] relief,” 73 Fed. Reg. at 74,931, Mid Continent argues that Commerce “had determined the withdrawal was necessary because the existing regulations were contrary to law,” and thus “immediate withdrawal was ... fully justified.” In connection with this argument, Mid Continent cites the doctrine of deference to agency statutory interpretations under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to assert that the Limiting Regulation was contrary to statute because it was inconsistent with Commerce’s view of the statute in Withdrawal Notice. Mid Continent’s theory, therefore, is that there was no need for Commerce to undergo notice-and-comment rulemaking because the Limiting Regulation was contrary to the statutory provisions of the Tariff Act.

This theory of good cause did not appear in Withdrawal Notice and therefore cannot support a finding of good cause. See N.C. Growers, 702 F.3d at 767. In any case, we do not agree with Mid Continent’s premise that the agency had determined the Limiting Regulation to be “contrary to law.” Commerce did not state in Withdrawal Notice that the Limiting Regulation was contrary to an unambiguous statutory provision—and, to our knowledge, no party has ever challenged the validity of the Limiting Regulation under the Tariff Act. What Commerce actually stated was that the “effect” of the regulations was “inconsistent ... with [its] statutory mandate,” which the agency broadly framed as “providing] relief to domestic industries materially injured by unfairly traded imports.” 73 Fed. Reg. at 73,931. These statements are not tantamount to a determination that a regulation is contrary to an unambiguous provision of statutory law.

Nor do we agree that the inconsistency of a regulation adopted under an agency’s previous statutory interpretation with the agency’s present statutory interpretation ipso facto renders the regulation “contrary to law.” By definition, an agency’s ability to alter its statutory interpretation requires statutory ambiguity, and, under Chevron, an agency can only reject a prior interpretation of an ambiguous statute if it explains why it is doing so. See, e.g., Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981-82, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005); Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996); Rust v. Sullivan, 500 U.S. 173, 186-87, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). In this situation, notice-and-comment rulemaking under the APA is more—rather than less—important to lay the groundwork for the agency’s exercise of its Chevron authority.

Thus, we agree with the Trade Court that Commerce’s invocation of the good-cause exception did not support its decision to dispense with notice-and-comment rulemaking under the APA.

Ill

Mid Continent argues that even if Commerce’s repeal of the Limiting Regulation violated the APA, the agency’s actions may nonetheless be affirmed on the ground of harmless error. The APA directs reviewing courts to take “due account ... of the rule of prejudicial error” in deciding whether to “hold unlawful and set aside agency action.” See 5 U.S.C § 706(2). The Supreme Court has de-described this provision as an “administrative law ... harmless error rule.” Shinseki v. Sanders, 556 U.S. 396, 406, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009). We must therefore determine whether Commerce’s failure to comply with notice-and-comment rulemaking may be excused as harmless error.

Mid Continent contends that Commerce’s procedural error was harmless because Precision cannot show prejudice of a sort cognizable under the statute. Relying on our decision in Intercargo Insurance Co. v. United States, Mid Continent argues that “[prejudice ... means injury to an interest that the statute, regulation, or rule in question was designed to protect,” and that the only injury Precision can show—that Commerce reached an adverse decision in its dumping investigation—is not an interest protected by notice and comment. 83 F.3d 391, 396 (Fed. Cir. 1996). Precision counters that it was required to show only that Commerce’s procedural error had some “bearing on ... the substance of [the] decision reached,” and that given the magnitude of the agency’s error and its inability to participate in a rulemaking, this standard is satisfied. Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir. 1992).

In determining whether a procedural error committed in the course of rulemaking was harmless under the APA, courts have distinguished between an agency’s “technical failure” or substantial compliance with the APA’s procedural requirements on one hand (which may constitute harmless error), and its “complete failure” to do so on the other (which may prevent the error from being harmless). United States v. Reynolds, 710 F.3d 498, 516-19 (3d Cir. 2013). “In the first category, the agency has provided some notification and method for commenting but some technical failure in that process violates statutory requirements. In these ‘technical failure’ cases, the party challenging the agency rule ‘may be required to demonstrate that, had proper notice been provided, they would have submitted additional, different comments that could have invalidated the rationale’ of the rule.” Id. at 516 (internal citation omitted) (quoting City of Waukesha v. EPA, 320 F.3d 228, 246 (D.C. Cir. 2003)).

To illustrate this first “technical failure” category of cases, in Riverbend Farms, the Ninth Circuit concluded that the Secretary of Agriculture’s failure to publish notice in the Federal Register and refusal to accept written comments were harmless because the parties challenging the rule were given actual notice—albeit not published in the Federal Register—and had the opportunity to give oral comments at meetings conducted by the agency. See 958 F.2d at 1488. Similarly, in Friends of Iwo Jim a v. National Capital Planning Commission, the Fourth Circuit held that the National Capital Planning Commission’s failure to provide notice for two meetings in a “protracted process” was harmless because the challengers had notice of other opportunities to submit comments, and the substance of the comments they allegedly would have submitted was the “main focus of each stage in the approval process.” 176 F.3d 768, 774 (4th Cir. 1999); see also, e.g., Air Transport Ass’n of Am. v. Civil Aeronautics Bd., 732 F.2d 219, 224 n.ll (D.C. Cir. 1984) (agency’s failure to timely provide internal staff studies was harmless in the absence of petitioner “explain[ing] what it would have said had it been given earlier access”).

Our decision in Intercargo is consistent with these “technical failure” cases. In In-tercargo, after concluding that the Customs Service was required to recite a statutory basis when issuing an extension of time to liquidate import entries, we considered whether the Service’s failure to do so was harmless. See 83 F.3d at 392, 394. We noted that the “omission of the requisite language ... had no effect on [the] right to challenge the extension” and that the importer had not alleged the absence of a statutory basis—the agency had simply failed to identify the basis in its notice. Id. at 396. In rejecting, the imposition of additional duties as a-source of prejudice, we observed that “[a] party is not ‘prejudiced’ by a technical defect simply because that party will lose its case if the. defect is disregarded.” Id. (emphasis added).

In the Second, “complete failure” category of cases, the total absence of notice-and-comment rulemaking and the resulting thin or nonexistent record make it difficult for a reviewing court to conclude with certainty that no prejudice has ensued. See Reynolds, 710 F.3d at 518: In such cases, even a minimal showing of prejudice may suffice to defeat a claim of harmless error because “an utter failure to comply with notice and comment cannot be considered harmless if there is any -uncertainty at all as to the effect of that failure.” Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 96 (D.C. Cir. 2002); see also, e.g., Sprint Corp. v. FCC, 315 F.3d 369, 376 (D.C. Cir. 2003); Paulsen v. Daniels, 413 F.3d 999, 1007 (9th Cir. 2005).

Commerce’s failure to comply with the APA was not a mere technical defect, but amounted to a complete failure to provide the adequate notice and opportunity for comment that the APA requires. There is considerable uncertainty as to the effect of. this failure. We find it significant that during Commerce’s subsequent rule-making to withdraw the Limiting Regulation, the agency relied on its post-2008 experience to'justify the repeal. See 79 Fed. Reg. at 22,375 (noting Commerce’s development of “differential pricing analysis”). Moreover, Commerce did not in Withdrawal Notice address any substantive objections to withdrawing the Limit-mg Regulation. Cf. United States v. Johnson, 632 F.3d 912, 931 (5th Cir. 2011) (finding harmless error where the agency “thoroughly engage[d] the issues and challenges inherent in the regulation” and “was able to address objections in the interim final rule”). The agency in fact did not address those objections until its 2014 rulemaking. See 79 Fed. Reg. at 22,374-75. All this suggests that Commerce’s failure to go through notice and comment could well have affected the result reached in Withdraival Notice.

Accordingly, we hold that Commerce’s failure to comply with notice-and-comment rulemaking cannot be excused as harmless error.

IV

We finally address Mid Continent’s argument that Commerce erred in applying the Limiting Regulation on remand from the Trade Court. To recap, Commerce’s remand redetermination applied the Limiting Regulation and concluded that application of the average-to-transaction methodology to all of Precision’s sales was unwarranted because “the record does not contain evidence to suggest that this normal limitation should not be applied.” J.A. 89. On appeal, Mid Continent argues that Commerce misapplied the Limiting Regulation by failing to reinterpret the regulation to be consistent with the agency’s post-2008 interpretation of the statute, which assertedly requires broader application of the average-to-transaction methodology. In connection with this argument, Mid Continent suggests that Commerce misinterpreted the Trade Court’s remand instructions as prohibiting the agency from reinterpreting the regulation, or that the court erred by depriving the agency of such discretion and then deferring to Commerce’s application of the Limiting Regulation on remand.

Having examined Commerce’s remand redetermination, we find Mid Continent’s arguments unavailing. The Trade Court’s instructions did not compel Commerce to apply the average-to-transaetion methodology only to targeted sales, and on remand, the agency did not misinterpret the court’s instructions. See Mid Continent II, 113 F.Supp.3d at 1327 (“To the extent that [Mid Continent] argues that the government adopted an inappropriately narrow view of its authority ... and inaccurately construed the remand order as cover for doing so, [Mid Continent] is mistaken.”).

As for Mid Continent’s argument that Commerce erred by not reinterpreting the Limiting Regulation, this argument misses the mark. There is no serious contention that Commerce’s application of the Limiting Regulation contravened an unambiguous provision of statutory law, or was otherwise “plainly erroneous or inconsistent with the [Limiting] [R]egulation” itself. Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). Nor has Mid Continent argued that the agency’s application of the regulation was arbitrary, capricious, or unsupported by substantial evidence. In the absence of these contentions, a court is not free to displace an agency’s reasoned application of its own rule. Mid Continent’s argument that Commerce misapplied the Limiting Regulation in the agency’s remand rede-termination is without merit.

Conclusion

For the stated reasons, we hold that Commerce failed to comply with notiee- and-comment rulemaking under the APA by repealing the Limiting Regulation in Withdrawal Notice, that its failure cannot be excused for good cause or harmless error, and that the agency did not err in applying the Limiting Regulation on remand. The judgment of the Court of International Trade is

AFFIRMED

Costs

Costs to appellee.

      . Another mandatory respondent identified by Commerce, Dubai Wire FZE (“Dubai Wire”), participated in the agency’s dumping investigation and intervened in the Trade Court, but did not file a brief in this appeal. We have limited our recitation of the facts to those pertinent to Precision, but note that the relief sought by Mid Continent could impact Dubai Wire as well.

      . Commerce stated at the time that "it would be ‘unreasonable and unduly punitive’ to apply the [average-to-transaction methodology] to all sales where, for example, targeted dumping accounted for only one percent of a firm’s total sales.” 62 Fed. Reg. at 27,375.

      . The Trade Court first reached this conclusion in an earlier case, Gold East Paper (Jiangsu) Co. v. United States, 918 F.Supp.2d 1317, 1328 (Ct. Int’l Trade 2013).

      . Accord Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014); Iowa League of Cities v. EPA, 711 F.3d 844, 872 (8th Cir. 2013); Meister v. U.S. Dep’t of Agric., 623 F.3d 363, 370-71 (6th Cir. 2010); Reno-Sparks Indian Colony v. EPA, 336 F.3d 899, 909 n.11 (9th Cir. 2003); Warder v. Shalala, 149 F.3d 73, 79 (1st Cir. 1998); Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1027 (D.C. Cir. 1978). See generally United States v. Reynolds, 710 F.3d 498, 507-09 (3d Cir. 2013); Jared P. Cole, Cong. Research Serv., R44356, The Good Cause Exception to Notice and Comment Rulemaking; Judicial Review of Agency Action 13-14 (2016).

      . See also Am. Water Works Ass’n v. EPA, 40 F.3d 1266, 1274 (D.C. Cir. 1994) ("We apply [the logical outgrowth] standard functionally by asking ... whether a new round of notice and comment would provide the first opportunity for interested parties to offer comments that could persuade the agency to modify its rule.”).

      . See also, e.g., Veterans Justice, 818 F.3d at 1345 (upholding a final rule because “[o]ne logical outgrowth of a proposal is surely ... to refrain from taldng the proposed step”); Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1299 (D.C. Cir. 2000) ("In first proposing that tribes would have to meet the ‘same requirements' [for judicial review under the Clean Air Act] as states, EPA effectively raised the question as to whether this made sense.”).

      . At best, commenting parties understood the agency to be open to suggestions on how to apply the Limiting Regulation. To illustrate, as one commentator stated: "[T]he Department should clarify when it will apply the average-to-transaction methodology to all sales, rather than only targeted sales. We think it would be appropriate ... to apply the average-to-transaction method to all sales ... where the targeted quantity exceeds twenty percent of the U.S. sales database.” Letter from David A. Hartquist, Executive Director, Committee to Support U.S. Trade Laws to David Spooner, Assistant Secretary for Import Administration 3 (Dec. 10, 2007) (emphasis added), available at https://perma.cc/5 FJR-WKZD.

      . Under this test—also known as the Nails test, see JBF RAK LLC v. United States, 790 F.3d 1358, 1367 & n.5 (Fed. Cir. 2015)— Commerce first ”determine[s], on an exporter-specific basis, the share of the allegedly targeted customer's purchases of subject merchandise, by sales value, that are at prices more than one standard deviation below the weighted-average price to all customers of that exporter, targeted and non-targeted.” 73 Fed. Reg. at 26,372. “If that share exceeds 33 percent of the total value of the exporter's sales of subject merchandise to the allegedly targeted customer, then the pattern requirement is met.” Id. In the second part of the Nails test, Commerce “determine^] the total sales value for which the difference between (i) the sales-weighted average price to the allegedly targeted customer and (ii) the next higher sales-weighted average price to a non-targeted customer exceeds the average price gap ... for the non-targeted group.” Id. If the share of sales satisfying these criteria "exceeds 5 percent of the total value of sales of subject merchandise to the allegedly targeted customer,” then the pattern of price differences is deemed "significant,” and the exporter will be found to have engaged in targeted dumping. Id.

      . See also Shell Oil Co. v. EPA, 950 F.2d 741, 751 (D.C. Cir, 1991) (noting that under NRDC v. Thomas, 838 F.2d 1224, 1243 (D.C. Cir. 1998), comments to an agency proposal are a relevant factor if they raise a "foreseeable possibility of agency action”); Int’l Union, 407 F.3d at 1261 (underscoring that NRDC v. Thomas represents "the outer limits of the 'logical outgrowth’ doctrine” and that the agency in that case gave notice and opportunity for comment two weeks before promulgating the final rule).

      . Responses to Proposed Methodology, for example, suggested a number of ways to apply the Limiting Regulation, including the establishment of numerical thresholds that if satisfied would result in applying the average-transaction methodology to all sales. See Letter from King & Spalding LLP to Hon. David Spooner, Assistant Secretary for Import Administration 12 (June 23, 2008), available at https://perma.ee/Q7T6-5RH3 (proposing a twenty percent threshold based on U.S. sales); Letter from Skadden, Arps, Slate, Meagher & Flom LLP to David Spooner, Assistant Secretary for Import Administration 20 (June 23, 2008), available at https://perma.cc/HUJ4-UXPE (proposing a twenty percent threshold or “when the Department cannot identify the full scope of the respondent’s targeted dumping”).
      Mid Continent identifies a number of specific comments responding to Proposed Methodology that it contends addressed "possible modification” of the Limiting Regulation. We disagree. These comments addressed Commerce’s interpretation of the Limiting Regulation’s "normally” limitation and did not suggest revision or repeal. To illustrate, one comment cited by Mid Continent stated that Commerce "should apply the [average-to-transaction] methodology to all of the sales to the target” because “[o]nce a customer or region has been identified as being targeted by a respondent ... [Commerce] should consider that all sales to that target are subject to the same pricing practices and are, therefore, targeted sales.” Letter from David A. Hart-quist, Kelley Drye & Warren LLP to Secretary of Commerce 30 (June 23, 2008) (emphasis added), available at https://perma.cc/D 34C-VU94. The emphasized portions of this comment underscore the comment's consistency with the Limiting Regulation, i.e., that Commerce should "normally” limit the average-to-transaction methodology to "sales that constitute targeted dumping.” 19 C.F.R. § 351.414(f)(2) (2008).

      . See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Disabled Am. Veterans v. Gober, 234 F.3d 682, 692 (Fed. Cir. 2000) ("[I]nextricably intertwined with ... 5 U.S.C. § 553(c) is the agency's need to respond, in a reasoned manner, to any comments received by the agency that raise significant issues with respect to a proposed rule.”).

      . Accord NRDC v. Abraham, 355 F.3d 179, 204 (2d Cir. 2004); United States v. Reynolds, 710 F.3d 498, 507-08 (3d Cir. 2013); United States v. Gould, 568 F.3d 459, 469 (4th Cir. 2009); United States v. Johnson, 632 F.3d 912, 928 (5th Cir. 2011); United States v. Cain, 583 F.3d 408, 420-21 (6th Cir. 2009); Nw. Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1321 (8th Cir. 1981); Alcaraz v. Block, 746 F.2d 593, 612 (9th Cir. 1984); N. Am. Coal Corp. v. Dep’t of Labor, 854 F.2d 386, 388 (10th Cir. 1988); United States v. Dean, 604 F.3d 1275, 1279 (11th Cir. 2010); Utility Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001).

      . See also Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C. Cir. 1981); U.S. Steel Carp. v. EPA, 595 F.2d 207, 213 (5th Cir. 1979); Am. Iron & Steel Inst. v. EPA, 568 F.2d 284, 292 (3d Cir. 1977).

      . See Polyethylene Retail Carrier Bags From Taiwan, Preliminary Determination, 74 Fed. Reg. 55,183, 55,187-88 (Oct. 27, 2009); Polyethylene Retail Carrier Bags From Taiwan, ■Final Determination, 75 Fed. Reg. 14,569, 14,569 (Mar. 26, 2010).

        .See generally Maeve P. Carey, Cong. Research Serv., R41974, Cost-Benefit and Other Analysis Requirements in the Rulemaking Process (Dec. 9, 2014) (summarizing presidential and congressional actions requiring agencies to conduct economic cost-benefit analysis).

      . See Nat’l Customs Brokers & Forwarders Ass'n v. United States, 59 F.3d 1219, 1223-24 (Fed. Cir. 1995) (upholding agency's invocation of good cause where regulation was amended without notice or comment to exactly parallel intervening statutory amendment).

      . See also, e.g., Sprint Corp. v. FCC, 315 F.3d 369, 376 (D.C. Cir. 2003) ("[A]n utter failure to comply with notice and comment cannot be considered harmless if there is any uncertainty at all as to the effect of that failure.”); Shell Oil Co. v. EPA, 950 F.2d 741, 752 (D.C. Cir. 1991) ("While petitioners must show that they would have submitted new arguments to invalidate rules in the case of certain procedural defaults, such as an agency’s failure to provide access to supplemental studies, petitioners need not do so here, where the agency has entirely failed to comply with notice-and-comment requirements, and the agency has offered no persuasive evidence that possible objections to its final rules have been given sufficient consideration.” (citations omitted)); compare Int’l Union, 407 F.3d at 1259-61 (final rule setting maximum air velocity cap where proposed rule only set minimum cap was not a logical outgrowth, not harmless), with Int’l Union, 626 F.3d at 95-96 (D.C. Cir. 2010) (challenger failed to demonstrate prejudice because it was able to participate in the agency’s rulemaking proceedings and raised issues on appeal that were already "encompassed in its comments”).

      , We also do not think that Commerce’s subsequent decision to formally withdraw the Limiting Regulation changes the calculus of our decision; agency attempts to cure procedural defects ex post are not generally accepted as validating prior missteps. See, e.g., Mack Trucks, 682 F.3d at 95; U.S. Steel Corp., 595 F.2d at 214-15.


author: SELYA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Daniel BRAMLEY, Defendant, Appellant.
    No. 15-2446
    United States Court of Appeals, First Circuit.
    January 26, 2017

      Jamesa J. Drake, with whom Drake Law, LLC, Auburn, ME, was on brief, for appellant.
    Julia M. Lipez, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
    Before KAYATTA, Circuit Judge, SOUTER, Associate Justice, and SELYA, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   SELYA, Circuit Judge.

This sentencing appeal requires us to explore the intersection between the right of a sentencing judge to receive confidential advice from probation officers and the right of a convicted defendant to know the nature of the information upon which he is sentenced and to challenge its relevancy and accuracy. Concluding, as we do, that the court below did not plainly err by engaging in brief, off-the-record conversations with a probation officer during the appellant’s sentencing, we affirm.

I. BACKGROUND

The relevant facts and travel of the case can be succinctly summarized. Defendant-appellant Daniel Bramley, a British national, came to the attention of federal authorities during a Drug Enforcement Administration (DEA) wiretap investigation into the operations of a drug-trafficking ring in and around Portland, Maine. The investigation revealed the ringleader to be one Robert Evon, and the DEA intercepted several communications between Evon and the appellant in mid-2013. Among other things, Evon requested that the appellant collect “paperwork” from a coconspirator. The appellant complied, retrieving a package that contained $25,000 in drug proceeds. He later accompanied Evon to Scarborough, Maine; obtained twenty pounds of marijuana; and peddled some of the marijuana in Vermont.

As its investigation progressed, the DEA obtained additional information from a cooperating witness (who turned out to be none other than Evon himself). Cf. William Shakespeare, The First Part of King Henry the Fourth act 2, sc. 2 (1597) (“A plague upon it when thieves cannot be true one to another!”). We highlight this additional information, mindful that the appellant disputes much of it.

• Roughly ten years earlier, Evon procured sizeable quantities of marijuana from the appellant on multiple occasions.
• In 2012, the appellant — acting as a middleman — connected Evon with a marijuana source in Staten Island, New York.
• Either the same year or the next year, the appellant arranged for Evon to obtain marijuana from yet another New York source.
• Evon and the appellant subsequently met this second supplier in San Francisco to acquire liquid LSD (which the two men planned to sell in Vermont and Maine).

The DEA investigation reached its climax in March of 2014. At that time, a federal grand jury sitting in the District of Maine indicted the appellant on charges of conspiracy to distribute and possess with intent to distribute marijuana, see 21 U.S.C. §§ 841(a)(1), 846; unlawful use of a communication facility, see id. § 843(b); and related criminal forfeitures, see id. § 853. After initially maintaining his innocence, the appellant entered a guilty plea to the conspiracy count and, in the process, acknowledged the prosecution’s written version of events as true. The other charges were dismissed.

The district court convened the disposition hearing on November 6, 2015. Although the presentence investigation report (the PSI Report) alleged that the appellant was responsible for 68.2 kilograms of marijuana and approximately 5,000 kilograms of marijuana equivalent (or fifty milliliters of liquid LSD, see USSG § 2D1.1, cmt. n.8(D)), the appellant had not admitted to any specific drug quantities. Given the absence of any such admission, the sentencing court recognized — and the government agreed — that the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), limited the maximum available sentence to sixty months, see 21 U.S.C. § 841(b)(1)(D), notwithstanding that the guideline sentencing range would otherwise have been 135 to 168 months.

The government argued for a sentence “near” the sixty-month maximum, reasoning that the appellant’s brushes with the law were more extensive than his .criminal history score suggested and that he appeared to be a professional marijuana trafficker. Among its supporting points, the government noted that the authorities had twice seized large sums of cash ($33,000 and $100,000, respectively) from the appellant in 2005.

Defense counsel rejoined that the appellant’s past peccadillos were remote in time and that his current medical conditions (depression and diabetes) cried out for leniency. Counsel also cited the appellant’s immigration status, arguing for a sentence of less than one year since a longer sentence could expose the appellant to deportation. See 8 U.S.C. § 1227(a)(2)(A)®. The appellant himself added a series of denials: he denied selling LSD, introducing Evon to suppliers,- and knowingly transporting drug proceeds.

The sentencing court voiced concern about the appellant’s criminal history, particularly the unexplained chunks of cash that had been found in his possession. Although the appellant insisted that the cash came from lawful sources, the court remained skeptical. When pressed, the appellant acknowledged that at least some of the cash may have originated from marijuana sales.

The court continued the sentencing hearing to November 18 to allow the government an opportunity to rebut the appellant’s attempt to limit his involvement with Evon. When the hearing resumed, the government offered wiretap records memorializing the appellant’s communications with Evon. The records revealed that the appellant agreed to do Evon a favor by picking, up “paperwork.” A DEA agent testified that “paperwork” is a common code word for cash in drug-trafficking parlance and that the appellant and Evon used the term to refer to cash. Faced with this evidence, the appellant backtracked: he admitted that he “suspected [the ‘paperwork’] was something not legit” and knew that the package contained cash when he retrieved it.

The DEA agent also described text messages between Evon and the appellant in which the two men discussed plans to sell “blue bottles” at a forthcoming concert. The agent testified that the DEA later seized the blue bottles and found them to contain liquid LSD. Confronted with this testimony, the appellant insisted that he only purchased LSD from Evon for personal use, not for resale; but the court remained dubious given the quantity of LSD involved and the appellant’s text message to Evon stating “I have blue bottles gone.”

Toward the end of the resumed hearing, the judge took a short recess and engaged in an off-the-record conversation with the probation officer. This break in the action — to which the appellant did not object — lasted approximately five minutes. Immediately thereafter, the court asked the parties to address the government’s contention that the appellant should be denied any credit for acceptance of responsibility. See USSG § 3El.l(a). The court told defense counsel that it did not “want to even consider doing something unless you get an opportunity to address it.” Following arguments on this point, the court found that the appellant had lied deliberately on at least two occasions during the sentencing phase (about knowingly transporting drug proceeds and about conspiring to sell LSD). Based on this discerned prevarication, the court proceeded to find that the appellant had not accepted responsibility and sentenced him to a fifty-month term of immurement.

Before the imposition of sentence was completed, a second off-the-record conversation took place between the court and the probation officer. This conversation, which lasted a mere ten seconds at sidebar, occurred while the court was considering the monetary increments of the sentence. Once again, the appellant did not object to the pause. In the end, the court imposed the mandatory $100 special assessment, see 18 U.S.C. § 3013(a)(2)(A), and waived any fine.

This timely appeal followed.

II. ANALYSIS

This is a rifle-shot appeal, in which the appellant (represented by new counsel) advances only a single claim of error. He challenges the district court’s actions in conversing off the record with the probation officer during sentencing without ever apprising him of the substance of those conversations. Because the appellant interposed no contemporaneous objections to these conversations, our review is for plain error. See United States v. Mehanna, 735 F.3d 32, 52 (1st Cir. 2013); see also Fed. R. Crim. P. 52(b).

As we have made pellucid, “[t]he plain error hurdle is high.” United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). Review for plain error “entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The proponent of plain error must carry the devoir of persuasion as to each of the four elements that collectively comprise the plain error standard. See United States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir. 2006); United States v. Vega Molina, 407 F.3d 511, 521 (1st Cir. 2005). Given the rigors of this standard, a reviewing court’s power to set aside trial court decisions due to plain error “should be employed sparingly.” United States v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc); see United States v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995).

The first two elements of the plain error standard, read together, require us to determine whether the district court committed a clear and obvious error when it engaged in ex parte conversations with the probation officer during sentencing. We begin with first principles: neither the Sixth Amendment right of confrontation nor the Federal Rules of Evidence apply during the sentencing phase of a federal criminal proceeding. See United States v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003). As a result, a district court enjoys considerable discretion in determining what information it will consider at sentencing. See id.

Though wide, this discretion is bounded by both Federal Rule of Criminal Procedure 32 and the demands of due process. These strictures require, at a minimum, that “a defendant ... be sentenced upon information which is not false or materially incorrect.” United States v. Curran, 926 F.2d 59, 61 (1st Cir. 1991); see United States v. Kenney, 756 F.3d 36, 49 (1st Cir. 2014); United States v. Berzon, 941 F.2d 8, 18 (1st Cir. 1991). Rule 32 directs the probation office to prepare a PSI Report — a report that must be compiled with an eye toward due process. See Fed. R. Crim. P. 32(c)(1)(A); Curran, 926 F.2d at 61. PSI Reports must be made available to the parties, and the parties must be given the opportunity to object to their contents. See Fed. R. Crim. P. 32(e)-(f). In a similar vein, the sentencing guidelines stipulate that “[w]hen any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor.” USSG § 6A1.3(a). More broadly, we have recognized that “a defendant must be provided with a meaningful opportunity to comment on the factual information on which his or her sentence is based.” Berzon, 941 F.2d at 10.

In light of this legal framework, it is unsurprising that our precedents are protective of a defendant’s right to disclosure of the information affecting a sentencing court’s decisional calculus. See, e.g., Curran, 926 F.2d at 63 (holding that “a sentencing court, whenever it considers documents to which Rule 32 does not apply, should either make clear that the document is not being used for its factual content, or should disclose to the defendant as much as was relied upon, in a timely manner, so as to afford the defendant a fair opportunity to examine and challenge it”). While a defendant is not entitled to every scrap of information that may be relevant to his sentence, see, e.g., Fed. R. Crim. P. 32(d)(3) (directing probation officers to exclude certain information from PSI Reports, such as sources of confidential information and “information that, if disclosed, might result in physical or other harm to the defendant or others”), we have expressed disapproval in several situations in which the sentencing court did not give the defendant an adequate opportunity to challenge the evidence against him. See, e.g., United States v. Zavala-Martí, 715 F.3d 44, 48-49, 55-56 (1st Cir. 2013) (finding sentencing process “inadequate” when district court was briefed ex parte by a probation officer — though not the probation officer assigned to defendant’s case — about defendant’s alleged attempts at intimidation); United States v. Craven, 239 F.3d 91, 101-03 (1st Cir. 2001) (remanding for resentencing where district court improperly relied on hour-long ex parte conversation with court-appointed psychologist); Berzon, 941 F.2d at 20-21 (remanding for explanation as to whether sentencing judge had relied on testimony, unknown to defendant, emanating from a different defendant’s case).

Withal, a sentencing court’s communications with the probation officer are fundamentally different from its communications with third parties. A probation officer is simply an extension of the court itself, cf. 18 U.S.C. § 3602(a) (authorizing district courts to appoint probation officers), and “functions as an arm of the court,” United States v. Saxena, 229 F.3d 1, 5 n.1 (1st Cir. 2000).

This distinction underpinned our reasoning in United States v. Fraza, 106 F.3d 1050, 1055-56 (1st Cir. 1997). There, we found no error in a probation officer’s interruption of a sentencing hearing in order to converse ex parte with the court. See id. We observed, that the probation officer’s duty is to supply the “judge with as much information as possible in order to enable the judge to make an informed decision.” Id. at 1056 (quoting United States v. Belgard, 894 F.2d 1092, 1097 (9th Cir. 1990)). The holding in Fraza is consistent with Rule 32 itself, which authorizes certain confidential communications between the probation officer and the sentencing court. See Fed. R. Crim. P. 32(e)(3). It is also consistent with the case law. See, e.g., United States v. Stanphill, 146 F.3d 1221, 1224 n.1 (10th Cir. 1998) (noting that ex parte communication between the court and the “probation officer responsible for sentencing recommendations is not improper per se”).

This does not mean, though, that probation officers and sentencing judges have a free pass to discuss everything and anything off the record. To the contrary, factual information relevant to sentencing must be disclosed to the defendant. See United States v. Gonzales, 765 F.2d 1393, 1398 (9th Cir. 1985). That principle is illustrated by the decision in United States v. Christman, where the court vacated the defendant’s sentence because the sentencing judge had relied on ex parte communications with probation and pretrial services officers conveying new information, specifically, their belief that the “defendant had acted on his pedophilia and in fact had molested children.” 509 F.3d 299, 300-01 (6th Cir. 2007).

This distinction—between new facts, on the one hand, and advice, on the other hand—is consistent with our reasoning in Craven. The psychologist’s opinion there, communicated off the record to the court and not disclosed to the defendant, was at a far remove from sentencing advice provided by a probation officer. Because the psychologist was supplying the court with new information, we held that the psychologist’s findings should have been disclosed to the parties and subjected to their examination. See Craven, 239 F.3d at 101 (holding that “a sentencing court may not utilize an ex parte conversation with a court-appointed expert as a means to acquire information critical to a sentencing determination and then rely on that information in fashioning the defendant’s sentence”).

The short of it is that a sentencing Court has the right to confer ex parte with a probation officer to seek advice or analysis—but if the probation officer reveals new facts relevant to the sentencing calculus, those facts cannot be relied upon by the sentencing court unless and until they are disclosed to the parties and subjected to whatever adversarial testing may be appropriate.

In the case at hand, the contents of the conversations are unknown—and that circumstance is the direct result of the appellant’s failure to object. At any rate, nothing in the record suggests that those conversations imported new facts into the sentencing calculus. Thus, we cannot say that an error occurred. What we can say, however, is that the existence of error was neither clear nor obvious. Given that the appellant must carry the burden of showing a clear and obvious error, see Turbides-Leonardo, 468 F.3d at 39, his claim fails under the first two elements of plain error review.

In all events, the fact that the record does not reliably suggest the contents of the ex parte conversations defeats the appellant’s claim at the third step of the analysis. This step requires that the claimed error must be shown to have affected the appellant’s substantial rights. See Duarte, 246 F.3d at 60. Typically, this means that “the error must have been prejudicial” such that it “affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In other words, the appellant must show a reasonable probability tliat, but for the error, the outcome would have been different. See Padilla, 415 F.3d at 220-21. Such a showing demands some level of certainty and particularity. See Jones v. United States, 527 U.S. 373, 394-95, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (“Where the effect of an alleged error is so uncertain, a defendant cannot meet his burden of showing that the error actually affected his substantial rights.”).

Here, the appellant has not shown a reasonable probability that the outcome of his sentencing proceeding would have been different but for the two off-the-record conversations between the sentencing judge and the probation officer. On this empty record, there is simply no basis for concluding that the conversations involved new facts or raised new matters. While the appellant repeatedly urges us to consider the possibility that the probation officer’s discussions with the sentencing judge may have been improper and prejudicial, that would entail a fruitless exercise in speculation and surmise. Where, as here, an appellant forgoes a timely objection that would have shed light on the nature of the conversations, he is in a woefully weak position to insist that we indulge in such speculation.

We add, moreover, that what indications there are in the record point in a contrary direction: the longer of the challenged conversations seems likely to have dealt with acceptance of responsibility (a matter fully aired at the sentencing hearing); and the sentencing judge, immediately after this conversation, made clear that he did not “want to even consider doing something unless [defense counsel] get[s] an opportunity to address it.” The fact that the judge took pains to enumerate the materials upon which he was basing his decision also argues against an assumption that the probation officer gave him new, undisclosed information. The judge specifically mentioned the PSI Report, the submitted evidence, letters received and placed on file, statements from counsel, and the appellant’s allocution. This recitation strongly suggests that the judge was aware of the appellant’s right to be informed about facts and arguments that might impact his sentence and did not base his sentencing decision on subterranean facts.

If more is needed — and we doubt that it is — nothing about the challenged sentence in any way indicates a hidden agenda. The sentence itself is below what the government requested and is amply justified by fully disclosed facts, including the appellant’s extensive involvement in marijuana-trafficking activities and his repeated shading of the truth during the sentencing proceeding. On this record, there is simply no way in which the challenged conversations, bereft as they are of any semblance of certainty or particularity because their content is wholly unknown, can plausibly be found to have affected the appellant’s substantial rights. See Jones, 527 U.S. at 394-95, 119 S.Ct. 2090; see also Padilla, 415 F.3d at 221 (noting that it was “nearly impossible” to find prejudice from alleged delegation error without having to compare “two unknown variables”).

For the sake of completeness, we comment briefly on the last element of the plain error analysis: whether the error (if one existed) “seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Duarte, 246 F.3d at 60. Because a probation officer is an extension of the sentencing court itself and the court is allowed to consult the officer off the record for many purposes and in many circumstances, brief ex parte conversations such as the ones that transpired here, unaccompanied by any showing of prejudice, cannot fairly be said to sully the public perception of judicial proceedings. Cf. Fraza, 106 F.3d at 1056 (noting expectation that probation officer will “exercise his independent judgment as to the application of the guidelines” and finding no error in ex parte discussions between judge and probation officer during sentencing hearing). Consequently, the appellant has not satisfied his burden with respect to the last element of the plain error standard.

We need go no further. In this case, all roads lead to Rome. The appellant’s sole claim of error engenders plain error review, and that standard presents a high hurdle that the appellant cannot vault. His claim fails to demonstrate any of the four elements needed for a finding of plain error.

Affirmed.

      . Apprendi guarantees a defendant the right to a jury finding referable to each element or element-equivalent of the charged offense. See 530 U.S. at 477, 484-85, 120 S.Ct. 2348. The same reasoning extends to facts admitted in a guilty plea. See United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ("Any fact ... which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”). Consequently, the court below could not lawfully impose a sentence beyond the default statutory maximum of five years. See United States v. Jiminez, 498 F.3d 82, 87 (1st Cir. 2007).

      . We focus on the longer conversation because, as a practical matter, the shorter of the two off-the-record conversations is virtually irrelevant. It lasted a mere ten seconds, and it took place after the court already had imposed the fifty-month sentence. The conversation preceded only the imposition of the special assessment (which was mandatory, see 18 U.S.C. § 3013(a)(2)(A)) and the decision not to impose a fine (which was favorable to the appellant). Seen in this light, the second conversation could not, by any stretch of even the most fertile imagination, have affected the appellant’s substantial rights.