the court although the rule makings that we challenge below in the administrative proceedings each note that in the n t study has been required and in fact under the statute and the regulation kind of the classic example of development on there are toxicity fetal alcohol syndrome is the classic example where futile exposure to alcohol at very low levels can cause permanent disabling neurological impairment at an exposure level that would cause no harm at all to adults and that's exactly the kind of risk that is act issue here that these d m t studies were required to address some pesticides do have a similar deference your honor up to the point that they concluded that it d n c study is needed to evaluate the risks at that point congress mandates what happens next a ten fold safety factor must be applied to account for that risk and e p a cannot make a prediction about the that for any pesticide if they don't have a d n t's study they must apply ten x we're only saying that where e p a in stealth has made the finding that a d m t study is necessary and they don't make that finding for every pesticide in fact out of a can't with the safety factor and i think it's important to emphasize that this study goes to the core of what the safety factor provision is intended to address the language that congress used is to the council to take into account potential  where the e p a makes a finding that a study the d n c studies required for that specific pesticide it's either as a matter of law or arbitrary capricious for them to set it lower than ten times the tolerance without f understand entirely because it's highly scientific but they seem to indicate that the reason that they had required the d n c said in the first place was not related to de facto children in towns they had to do with something did make a determination that this study for example that they don't have the authority to require the study for any other reason than that is necessary to ensure safety under the regs again this is forty c f r one fifty eight point seven five and also under the tolerance regulations it's forty c f r one eighty point seven b n leavened and it's in the statute as well e p a can't require a study unless they need to look at the results of that study to evaluate the risks to look at  twenty one us code three forty six x eighty two eighty nine the important issues so the good science question goes to whether the study is properly conducted that used the right number of animals the lab results were valid everything like that and we're not challenging that but  to evaluate missing study when all of the other data that they have goes to another question it's irrelevant so reliable data necessarily includes those two components of science but also relevant on point to the question that you i think also in discussing the statutory language is important to keep in mind the whole statutory context and this is a health perspective statute congress said in the absence of data err on the side of caution and even the clause that allows that they made a prediction about the outcome of these studies that they don't half and they said in response to the objections the petitioners have presented no evidence that the at the that the study that we don't have would come out a different way and that's where e  studies and other kinds of studies that if he relies on but in this case e p a has identified a particular concern for each of these pesticides now there are different reasons for these pesticides but it's specific to each pesticide and triggered this study and we cited record evidence in our briefs to show that there's not just potential there is an actual pre and post natal harm ranging from birth defects to brain damage to develop mental disability caused by exposure to these pesticides so in light of believe you know were they did not predict the results of the n t studies precisely here's what they did is they look at all of the evidence and they said how important are these the n t studies to us understanding the data for example with how  you wouldn't just wait to get the practical reason is that a new date is coming in all the time and he is sending out requests formal and informal for additional data and they're always receiving new data this is not an absolute certainty th really being here is that e p a is an expert that gets deference but it's a reasonable certainty of no harm not absolute certainty not do you have every piece of data that you could possibly get at just this point in time but you stream of data coming in and at the point where the scientists conclude we have enough to make our determination then you don't wait for further reports is that how it would work that's correct well then we need to wrong to a degree what they're saying is that the n t test shows something that none of the other tests show and so therefore your data wouldn't be sufficient to conclude that the prenatal their objections that that they gave on the administrative record they said simply that the d n a test is more sensitive and they looked at three three particular things to reach that conclusion e p a s request with that with regard to another analysis and you just can't draw a bright line and say once you request more data you have to wait to take any action before you get that data it depends upon the nature of the t d hand and i guess i'm wondering whether do what the plaintiff is asking for anyway why should we tell you there's something you're going to do anyway well this isn't so in other words is it to a degree is there a certain move this problem here at least not on the water modeling part but on the issue argument that once you request the data on it on your phone for someone else or just as a practical matter as a scientific manner the rest of the data becomes irrelevant you have to ignore it you can't look at it you can't make a decision you have to findings it seems to me unnecessary to do that because you already have what they say you should have before you make a decision and you're going to reconsider it anyway i mean perhaps i'm arguing their ca would you want us to stay deciding the case because you're going to reconsider it anyway because you're going to do you're going to do the the what you think is the right thing and which they're telling us we should order you to do it you're going to do anyway right you're go you're going to really evaluate the conses based upon the d m v studies that's correct so that's the best result that they could get here which you're going to do anyway and so should we if you're going to do that and the the near future  the point is that's always true or always requesting receiving the government at least at the district court level always seems to tell me like in immigration cases whatever they'll say you know look we'll take care of this they take care of it and i don't have to order the release of a person or whatever they would rather do it on their own and that's why i'm asking is the e p a think that it's appropriate no particular instance and they're not challenging essentially what we do with the data when it comes in it's the ability to make a decision at a point in time and we think they have misinterpreted the law in their interpretation as they've described today which is whenever we and then after reviewing that data it can then make a determination as to whether or not the tolerance needs to be readjusted or or revoke if we use the petitioner's process the simple of the simple request for more data would automatically mean the tolerance needs to be suspended at that point before the data is received and review simply because e t a going to be necessary that's not how congress anticipated maybe they're wrong about saying this but what they're saying is that the tests don't deal with that issue they're not challenging that they did that you have or the tests that were done but they're saying that the test don't reach the issue of prenatal development well they're saying that th essential element because because of the unique facts of the pesticide not because it was near the limit dose not because only the adults were you know but look at each one i've said how do how do i conclude that they made a rational determination  t the prenatal development would not be impacted by this these particular town some there's there's no extra tolerance and some there are three or three the answer is that's not the issue before the court we have to not act on the safety factor issue e p a addressed each of those may be a mystery but it seems to me that they make that argument by saying look you can't so these tolerances below ten until you get the d n c test and you unusual and why they were usually sensitive why they prefer provided data that was essentially could not do without and it's that decision whether or not you create properly ruled on those objections if that's really their their final rule studying the tolerance and you're saying that they look at it from a different aspect and there's no challenge to that data that's for ok i get it i get what you're saying time's up there a lot of other issues i think happy to  fans there's a two generation reproduction study that's done that shows potential reproductive the facts and their right to life time studies chronic studies that examine the entire of the animals and see are there any adverse effects here are there a neuro toxic effects and so forth and still those are and in the case of these five pesticides those database for that says look we've looked at this and here's the conclusion we reach and judge of content asked the question what's the significance then of requiring a d m t study there must be some inputs for that and there is and that impetus can be it could be a very serious effect that comes out from the other seven studies and in that case if you will say we're applying the full ten x factor until we get the d n c and it can be a minor effect they may see a potential neuro toxic effect in an adult not in children but in adults and the e p a says we want to know what's going on here we want to hunt down to a conclusion and rule out the possibility of any anything at first but we don't think it's serious and as they set in the case for these five pesticides we have a low level of concern based on our evaluation of reasonable certainty means i think on the scale of one to one hundred reasonably certain means pretty you're pretty close to one hundred you're not at one hundred but your you know ninety five percent id ninety eight percent  it's something in that order they have to be reasonably certain about ninety ninety nine percent but  ok they say we know that this virus is safe and they look at the d n c study and they know what doses are going to be used in the d n c study and in one of the cases for example they said look the safe those from the other studies is thirty times lower and even the lowest dose that would be used in the d m t study is thirty times lower so no matter what happens in the d n c study we know we're already using a  it won't make any difference what the d n c study shows and another for another one of the pesticides e p a said we did a risk assessment they always do a risk assessment and they found that the ri was virtually infinitesimal they look at the amount of exposure to the past aside and they say look the amount of exposure is one percent of the state's dumps so even if we applied a full ten x it's not going to change the fact that we are reasonably certain that there is no risk here to children the e p a scientists went through that kind of analysis pes and they said we have a very low level of concern here we don't think that this d m t study is going to change anything and that's exactly what congress asked them to do right congress used the word potential potential time the law was drafted based on previous legislation in a period of days and it was an active in a period of days without any industry virtually any industry input in that language was they sent a letter to the manufacturer saying as a condition for the use that you want to register you have to do this study data under that statute this extremely broad and they can ask for virtually anything they want and they do so in conclusion the case is is not as complex  seem at first glance if you know everything then and that it was asked to do by the statute went through the technical analyses in excruciating detail they found lo concerns raised by the existing database and so in this particular in these particular cases they said we can lower the ten x because we have a reliable database and we if they ask for that under this particular statute they're saying it's needed and therefore they can make a decision without and i'm trying to look at what is this the statute i didn't find it in twenty one u s c three forty six eighty two eighty nine you start that and then i don't have a sea of cars with me well let me let me draw a distinction between a registration and a tolerance for registration is a license for pesticide use that does not include particular food uses so  you're the just the your argument and if it's really simple phys things whether it's right or wrong it's that you're saying that look if they ask for this information they can only ask because only require a study if they find it's necessary for safety and therefore if it's shall be supported by such data and information as are specified in the regulations issued by the administrator and that includes the core data that interveners council address and then the next to last some paragraph at the bottom of the provision in its briefs to say that this was the authority that they used to require the d n c studies this provision says if the administrator determines that additional data are reasonably required to support the continuation of the that presumes that a tolerance already exists but in the situation here these tolerances did not exist the manufacturers ask for the right to apply pesticides to these good crops to answer your question with one more cite and some of the basic necessary for some of them a state needed but for all of these pesticides they said data is incomplete data are incomplete we are lacking this study and then they go on to say we make a decision based on the other information but in each of those federal register notices and we cited each one in our brief e p a says we don't have this particular study that we require but this is what about tell me what's wrong with this that it's would be i until they got the test or not is well perhaps not moot because the tolerances are presently exist they will it would be sort of improvident for us to make that decision telling a co equal branch of governor what to do when they're going to them so that means that for the past six and a half years these potentially unsafe levels of pesticides are on foods that petitioners members and their children are exposed to so first the answer is that the harm has been continuing for six years and may continue to be evaluated that study so it's been in their possession for two years but has never been evaluated e p a has counsel argued incorrectly that u p a really evaluates every tolerance every five years there's nothing in the statute that requires that and you're just one last thing on that they have only argued in this is as recently as a week ago that they have that the n t studies for one of the pesticides and they say that they waived it for another one and that it's in the process of being submitted for a third so they have never argued and there's nowhere in the record until today that they have the d n c study for the final two that's nowhere in the record up until now has e p a asserted that they have all of them but in any event unless the court were to were to vacate the tolerance they need to look at to insure safety they don't have to meet any deadline to approve a tolerance the manufacturer has petitioned for it but it is as everyone agrees the manufacturers obligation to submit all required data in support and it i obligation under the statute to assure safety and in particular a reasonable certainty of no harm to infants and children and and so the first answer to that argument of the agencies is that they have no deadlines to prove tolerances but they do have a congressional congressionally mandated obligation to ensure safety the second argument the second response is that we're not arguing that any time there's any piece of data that might come in the e p a has required at some point down the road congress was talking about it and finally the that the constant stream of data argument ignores the fact that i think your honour's referring to that this came to the agency on the petitioner on the  again creates a presumption that the safety factor will be applied so the easy answer here is that where e p a has identified missing data that goes to the heart of the issue they must apply the tensile safety factor until they receive that data if they cannot  other pesticides and e p a has taken the position that it can require a study and waive the safety factor in its absence and that creates a perverse incentive apparently at issue here for the manufacturers never to submit required data these this is