good morning your honor is in may have pleased the court roger whitten for the appellant and i wish to reserve two minutes for about a week challenge the secretary of agriculture it's spanish clementine rule principally on the ground that the administrative procedure act does not permit the secretary to exercise in a standard list manner of the discretion and we agree the plant protection act gives to the secretary in connection with the implementation of the prevent  the introduction or dissemination of dangerous plant test provisions of the law i'd like to spend one quick second on what we see as in this appeal and then move on to the issue of standardless discretion generally i want to draw the court's attention probably an obvious fact that as our economy becomes more globalized the secretary will be making a large number of decisions like this with respect to thought i wanted to try to give a fiery and live in our point about standardless discretion by drawing on a an analogy from the sport of baseball which may be helpful or you may just brush pretty much pull the rug out from under your argument and in rangers can in one way just as i read it at least it was introverting and after having to do with animals smaller than plants but that is nevertheless substantially identical to the planet and we made it pretty clear that the secretary has why discretion in dealing with the importation of products question over follows pearson incher kosky in the very recent tripoli rocketry case in the d c circuit which we brought to this court's attention last week it was just decided in february and all of those cases be exercised in a manner in which the in which the agency first describes the decisional standard and van and then links that standard to the language of the statute and explains why why that standard is appropriate under the statute and it's not sufficient to do and now i'm returning to the second part of your question the grammar it's not sufficient to simply quote back the statutory standard  the pearson panel made that absolutely clear in the in the d c circuit it is necessary to describe a standard whether qualitatively or quantitatively that the court can then compare t statutory language and see whether when you when the court looks at the decision and can compare it to the standard the court can reach the conclusion without substituting its judgment on the merits that the  range of one two thousand and one ten thousand and ten years yes which is not so low let me let me address that at the government argues both that the  secretary did not have to articulate a standard and coming to your question that the secretary's reliance on the risk mitigation analysis implies a standard and that that this court can  a basis for affirming there's a certain tension in the argument but the point of the problems that argument is problematic for three reasons first  a did not itself find that one in ten thousand represented the appropriate level of protection or even that the median probability level which is the one in ten thousand figure rather than the ninety fifth percentile figure an appropriate level of protection and the spanish clementine rule itself says that the risk mitigation analysis is not quote intended to provide a decision or judgment as to whether this final rule provide determine a defined acceptable or appropriate level of protection it is intended simply to inform the decision makers and so the first problem with that argument is this is not a decision of the agen concluded that a slightly higher risk of one in each hundred one in one seven nine zero very close to one in two thousand represented and unacceptably quote high likelihood unquote it's the worst of the worst but it's pretty bad when we've had experience  are any interveners or possibility of people who are in the record in terms of opposing the rule who whose crops might be adversely affected by the men live but who are not in fact in competition with clementine yes the plaintiffs included the two i want to mention three and that is if this court were to accept the government's argument and endure what we see is the standard approach then u s d a could come to this court or to a district court and the decisions to tolerate a very wide range of risk levels one in ten thousand one in one thousand and one in six thousand five hundred one in two thousand and one eighteen hundred on the same exact basis is that coming to the they know that they could come into the i'm not suggesting that they can and should adjust the range depending on the degree of risk presented by particular fruit my point is they could come to this court in this i think i think you properly reasoned decision here would be for them the safe you're here is the risk presented by this particular pass it's a lot worse maybe the worst of the worst maybe close to the worst of the worst it can have a catastrophic economic effect the effect could be a billion and a half dollars a year if it is a particularly spanish clementine as opposed to a woman's are particularly vulnerable fruit for carrying this they've got a catalog a whole a whole host of reasons and then picked either a qualitative or i would think a quantitative but i don't think i have to pick a quantitative number and so we think relevant when you're dealing with the worst of the worst but the point is that while together standing here we could probably figure out a way for the agency itself to do it the agency itself has not done it here and it was the agency went out of its way to articulate its disagreement with the decision of judge korea when the eastern district of california in the harlan length case which reversed a very comparable rule finding that the agency had not and had not articulated standard so what's going on here the agency had plenty of notice from a district court judge they didn't appeal that decision that  expected that they would or should delay the standard and and they haven't and i have to suggest although i don't want to ascribe motives that that's because the agency is trying to maximize the effectiveness of the exercise of its discretion and minimize the effectiveness also explained that the reason she was adopting that level was that she believed that it was an appropriate way of being confident that the level of infestation are low enough that in combination with called treatment about the shortest amount of coal treatment and that was dropped from the final the regulations at issue here provide more security then that the agency twenty first i want to try to reinforce the point that the secretary did not articulate either a qualitative or a quantitative standard with respect decisional a standard that it's used now i don't i don't think there's any controversy over whether as a