street please the court aaron street on behalf of the petitioners without its rules should be vacated for three independent reasons first the commission failed to follow the rules and procedures for banning hazardous products under section twenty fifty seven second the commission arbitrarily shifted the goalposts in the middle of the game when new scientific data eliminated the basis for regulating these dalliance and it did so by looking at actual women in the data set in direct contradiction to the commission's own recognition that the spot sample based a child could only be used to look at population estimates not individual exposure and third the commission failed to give notice and an opportunity to comment on this new actual women p d i d p only one of which is even involved in this case why would the association through exxon have the right to challenge any part of this rule the doesn't affect a product that they make so there's two there's really one aspect of this role which is banning hazardous products and it's banning alt child care products and toys that contain the i n p and then for additional ballots so we have the ability to challenge the rule which is a unitary body as to all of the ballots we also have done a backup why is that i mean what i'm looking at is for organizational standing you all i believe that our declarations setting aside the exxon mobil declarations the association all declarations do indicate that they manufacture or sell distributor resell all of the valley it's our regulated ballots is what the declaration say i believe that's sufficient on its own but let me say that what we're challenging here is really two components to the rule right there's a there's the interim ban which banned the i and p and then there are the four added valleys but the interim ban was expanded as to d i y and p as well because it expanded the i m p to cover all toys and all child care products so we have standing by virtue of declaration sets out that because the rule bans these dalliance they're all banned for the same reason on the theory that they are presenting a risk to the women's health and in france health that that creates a market stigma that would drive down demand for these products and i would add only briefly on the note of jurisdiction separate and apart from standing that there can really be no doubt that this court has jurisdiction because this is a rule banning hazardous products and rules banning hazardous products are one of the consumer products safety rules that are directly reviewable by the court of appeals and certainly happy to address any other questions on standing but with that i would turn to the merits all the actions taken  bans on hazardous products implicating two thousand and fifty seven gray yes yes this rule as a whole is a ban on a hazardous product no matter how you look at a congress set before the commission a task which was to identify which validates and which the alley product should be banned as one aspect of that they look at the interim ban congress want to be sure they did that but they also look at all of the ballots as a whole in consideration of the chaps report and that's exactly what the commission failed to do here is they failed to do what congress  them to do which was to declare any risky thousands a hazardous product under section twenty fifty seven and what the commission did it didn't even address that statutory language in its rule it simply declared we are not going to follow the twenty fifty seven procedures we're going to only follow the valid specific procedures in what the commission does in its brief when it does attempt to come up with the rationale for that interpretation is it reads the whole declare band has in its products clause out of the statute the statute would mean exactly the same thing if that were redacted from the statute under the commission's interpretation and they can't be any deference to an interpretation that's not included in the rule twenty fifty seven c is specific as to this and it is health they still only why wouldn't that trump the more general provisions that you say require the commission to consider cost but i disagree with the premise of that question because twenty fifty seven c b three contains a unitary authorization to the commission to regulate and it says it's all one clause it says they're supposed to consider the chaps report and declare any ballots banned hazardous products under section twenty fifty seven as necessary to protect the health of children the congress gave them one sentence and it said the ultimate standard is x but you look at twenty fifty seven which is the way you always declare bans on hazardous products for the procedures and other requirements to go through now if the commission thought there was some conflict or some tension between those different sets of requirements i don't think one's general one specific they're both in the statute together they perhaps could have gone through and tried to say well here's a conflict we're not going to follow this but otherwise the commission had to follow congress express direction you know history to be there in consistencies potentially between the  amendment that was made in two thousand and eight and one of the year was and the general language that you're relying on and including the first part of the some pork that you talked about earlier and the standard here is to ensure regional certainty of no harm to children adequate margin of safety which is a heck of a standard and i don't know how well that fits with the general banning of products under twenty fifty eight or twenty fifty seven and get you to into the procedure i just don't see the cost benefit and other options as being really fit within that sort of standard and it does seem to be reasonable interpretation of the rule of the statute that this is a freestanding  extent there is any particular conflict in the standard that is set out in twenty fifty seven c and the more general product liability or product consumer safety standards in twenty fifty seventh or twenty fifty eight the commission can look at that and can determine that it's going to follow twenty fifty seven c but much of what is included in banning hazardous products section of the statute are simply procedural mechanisms that the commission has to do due diligence that it has to do for example determining whether these products are even distributed in commerce or determining whether there are alternatives to the rule determining who's going to bear the cost and benefits of the rules separate and apart from even the cost and benefits but i want to go directly to the premise of the question which is that in some way health standards and these specific requirements of twenty fifty seven twenty fifty eight are necessarily in conflict because in michigan versus e p a the supreme court looked at a similar statute that imposed a very high health based standard for regulating on the e p a and yet the supreme court said that the e p a had to take into consideration cost or benefits as well and moreover congress knows how to direct take into account costs and benefits if you if you do have standing but if you're wrong that they messed up on the rule making your second and third or you would still apply yes and that's fine and yes so let me turn to those items i would say if the court rules for us on the statutory argument am vacates the rule on that basis it doesn't need to reach the second and third arguments but if it was against us on that then it would need to so our second argument is that the commission changed the regulatory threshold when the data the new data came in and didn't support regulation  let me unpack a little bit what i mean by that at page forty nine nine fifty five of the final rule the commission explained that it could look at spot samples to determine whether the hazard index was greater than one only because it was going to derive population wide exposure estimates from those spot samples that were going to be spread out across the whole set and derive something from it but the express lee said on that page you cannot look at these spot sample based h eyes to derive individual exposure estimates when the new data came in the commission did exactly what it said it would not do it looked at actual women in the data set and determine that they had a child greater than one and based the regulation on that it looked at those women where they did go to herman that two of nine but they didn't base the regulation on that right i thought they specifically responded to the comment and said sure food ma given most of the hazard as to the spot samples because that usually was going to happen but that's not what we're due to do doing we're not saying these women had leached plastic that caused this instead we did many over two years different times different places and from that we can extrapolate that one percent of women of reproductive age had this unacceptably high exposure i'd disagree with that on a very fundamental level your honor we do not disagree with the point about the food and other sources coming into it we're not disputing for these purposes that that is properly considered what we do dispute is the very last part of what you said which is that the commission derived from the presence of actual women in the dataset that one percent of the population had dangerous a risk exposure levels in fact the commission expressly disclaimed making any such inference because it said numbers that are above the ninety ninth percentile are unstable and unreliable for the purpose of drawing any population white estimates so what they did was a shell game they started out by saying we used by example based his eyes only to look at population wide estimates not of the vigil exposures but i'm not a statistician but  that it may be hard for them to extrapolate twenty thousand fifty thousand five hundred thousand but they're still saying two to five out of five hundred and that's a significant amount when we've been told by congress to reduce any reasonable certainty of harm with a margin safety so that i guess understand the question let me try to address that in this way at page forty nine nine sixty one of the final rule they say that these numbers are statistically unstable and you cannot draw population wide inference as they say on forty nine nine fifty eight the national population projection for h i i greater than one is not s in a bubble now i understand what you're saying which is well then couldn't they still say that that means somebody was harmed somewhere out there but the problem is no because they've already disclaimed using spot samples to drive any particular individual person bless you step to scientific methodology here when you're looking at using spot sam is it in the record yes i think it i think the commission and the chap used to ninety fifth percentile consistently until it didn't suit the data and that's at forty nine or forty six isn't really needed didn't suit the data because they had an obligation congress says do this in two thousand and eight then their preliminary rules what twenty four to the commission had to update with all relevant data if the finals and twenty seventeen and somewhere in there they actually that how to lift the ban as to too so they're looking at data and they're giving it to you when it benefits your viewpoint but they're also saying the exposure hasn't gotten sufficiently reduced given what congress has told us to do  here's and scientist independent we do it this way not this yes if you're looking at using spot samples in this way to determine that a particular percentage of the population is at risk you would have to look at that at the ninety fifth percentile and the commission itself describes that as the upper bound at page seventy eight three thirty two and at seventy eight three twenty eight now you cannot look at a spot sample is that answering her question that's just saying at some point ninety five percent was what we need to protect against not five percent more that's a debate about are we being too conservative or not but i hope where's the debate about this is nonscientific data so i i ok and the ninety fifth percentile they can draw a national population inference which is what the commission said is the only thing that you can do with spot samples based h once you get up to the ninety ninth percentile the commission itself says at the page i've already cited you cannot draw national population wide inferences all you know is that one person had a spot sample at one particular point in time or two through nine now why can't you derive anything about that because the h i i metric is set to measure the dangerous level or the risky level of long term exposure so if you have to deny women in the record that have a child greater than one based on a spot sample all you know is that they had a child spot sample level that's one hundred times lower than the long term exposure level that caused a risk in rats so you can't even draw any conclusion as to those particular but the commission scientifically did say that spot samples can under predict exposure and i think the commission also said then you don't need long term exposure to cause adverse health consequences that two points their respons part question so the commission did look at what they did say there could be overproduction underproduction but it's basing the regulation on the spikes upward so it doesn't really matter that there's under protection that's why the commission said if you look at spot samples over an entire population it will give us something we can work with but only if it's at a statistically stable level once you go to the ninety ninth percentile now you're looking at outliers who may have just very many he said he's an expert in this field it's not same party he said here's the methodology it's accepted this is the way we measure these things i think you i think you have to look at the commission taking its words taking the commission's word for it which is when you're dealing with these one time spot samples the only thing you can use that data for is to derive night national exposure estimates you cannot use one time spot samples to determine that a particular individual is at risk so they did it arguably they did it the right way when they looked at the national population sample at a ninety fifth percentile and they said we can derive from that that there's some level of women in the population that have an h i greatly than one but when the data came in that showed now at the ninety ninth percentile there's nobody that has an h i greater than one you have to look beyond the ninety nine then they switch the rationale and they say oh we're not looking at national population projections anymore we're now just looking at those actual women but that's the exact thing the commission said you cannot do because it looks at spikes and it looks at things that don't amount to a long term harm and so my focus is really on the commission's internally contradictory rationale as well as on the fact that once you get looking at actual women and spot samples and that's all you have you have no rational basis for determining that anyone is even at risk in this dataset and your honor if i could just take a minute or two on the give notice of its actual women and rational now or allow an opportunity to comment on that it didn't bring that up until the final rule and the best evidence of that is all you see in the chapter and all you see in the notice of proposed r making is ninety fifth which again was consistent with the national population projections then the new data comes in and you have the staff reanalyzing the data but all they do is they just report on the data they do report on actual women and ninety nine percent but they say these numbers are unstable the commission never comes in at that point and says as the commission we are giving you an indication that now that's our threshold for regulating even though we said we're not going to look at individual exposures they never came forward and gave that notice and comment opportunity so that we could make the arguments that we're having to make to this court this morning about the contradictory nature of the rationale and i think the best evidence of this is the dissenting commissioner statement which which in my experience is  quite unusual and he says the rule differ so different significantly from the proposed rule in the fundamental basis scientific rationale and technical justification that i could not have seen this coming nor mates nine years later after a peer reviewed advisory panel of independent scientists confirmed that downloads caused serious health effects most acutely to the male reproductive system the commission promulgated the final rule challenge today that will are banned that's consistent with with the statutes instructions and whether that's enough or jurisdiction is a different question than what the rule actually does so happy to address the jurisdictional issues or to proceed directly to the merits of the court as a short itself of its own is telling the congress was telling the commission what the effect of its declaration would be there are other parts of the consumer product safety act that use banned hazardous product for example fifteen u s c twenty sixty three which is that all banned hazardous products have to be not the work to clear and there's also the dimming language in that statute deemed to be a banned hazardous product and i would point the court to sections twenty fifty seven and twenty fifty seventy i'm not talking about the subsections twenty fifty seven i'm talking about standal also as several of you noted the structural income groups between the step down a statute in twenty fifty seven and twenty fifty eight the stalemate statute in the necessary to protect the health of children language creates a healthy standard that the supreme twenty fifty eight have to go through oral presentation requirements above and beyond the a p a so the question is why would congress in the next in the statute have created those sorts of income groupings given that its purpose and i think just looking at the very specific people wanted to follow twenty fifty seven and fifty eight and j twenty ninety three explained that it was not required to do so so this is not something that was sprung in the state occasion unless there are further questions on the meaning of the statute  those was not only considered supported by the science who is also consistent with what other agencies and private scientists set done in facing similar challenges the second question is once we know that ballots are unsafe above a certain level how many people are that was now subsequently there was new data the commission updated that it was when the advisory panel looked at it but they were using the pregnant women right not the way to reproductive age they were using pregnant women for the lay down ten percent ten percent yes that's sixteen in the third column ok so you're getting to the amount of arguments that he really pressed us today which is ok but something happens between chap advisory and final and all of a sudden the commission acknowledges there much less exposure out there but they don't reduce the recommended needs at all correspondingly that's correct there and that's because the commission always had the same methodology that it was necessary to make sure that no one was above the ha proposed rule where they say we're relying on the ninety fifth percentile and indeed it would have been strange for them to do so because they use the language up to five percent of infants which is below them if percentile so i've looked through the proposed rule many times and i just can't find anywhere that they say that know it's true yet to the women of reproductive stage data the commission looks at that's correct and take it from there in terms of his critique that the spot sampling isn't really telling us anything about long term exposure to plastics we we will not use spot sampling to determine how many women actually have it and then i say we're going to use the same data for spot sailing determined women who actually have it and they did not explain why it was ok to change their rationale if there were some explanation that there one dose of delegates above the hazard index can cause serious harm to fetuses and i think that provides a rational basis for the commission to have looked at the spot simply data how does that fit in with the data that we've already been talking about  analysis are you saying that that statement on those two pages is an indication the fact that there may be one woman is enough to where you want to use this word here or not ban these particular  something different i think that they were indeed had didn't explain why and how it's scientifically valid now when it wasn't before so i don't think they ever said that it wasn't valid before year and i think i think maybe that's where that that's where that's what we're talking about here the commission said that above the ninety fifth percentile you couldn't give a number in the broader population or rather you could i mean a lot of multiplication would still work but the variance to be too high to do it responsibly so we can't say with the state of six hundred thousand women of reproductive age or over exposed to four hundred thousand denied opportunity to comment on this whole new women of reproductive age data set just to turn to logical report we don't think there's a we don't think there's a logical problem with this case for a couple of reasons there's not a lot well excuse me a logical problem i notice and comment problem the first is that the final rule is identical in substance to the proposed rule it bans the same things and they don't have an a p a case that says well if the reasoning changes that can be a notice and comment probably the only case to give us is this crozier who fittings case it's not an e p a case at all it's a case of under a statute that requires a cross examination requirements and this court at can cite twelve eleven explained why those requirements are what was violated alleged the data was quote incomplete and quote subject to change quote so because the agency there wouldn't stand by its data the d c circuit said it was arbitrary capricious to rely on it here we're not saying data is subject to change we're not saying that it's incomplete inappropriate to kind of do multiplication to give a phone number of women in the population and that might well have been a problem if the statute said something like if more than one hundred fifty thousand women are in danger you should regulate but that's not at all what the statute said and at the very  would that cause havoc in a lot of areas or not yeah i think other agencies also used this this and again state of the national health and nutrition examination survey data i think that's the best data for determining all sorts of things and it isn't they just can't use exposure data because that would be watching outliers there were just too few of them and your is your answer a statutory one that no the statute says get rid of almost all risk not on present but almost all or is your answer no this is really common to extrapolate from two to eight out of five hundred or an determine that there are women with too many thoughts in their system how many women do there have to be in order to justify a ban is really a policy question it's really not a scientific question and it's a policy question the congress and trusted to the commission with highly protective language not to petitioners or the regulated industry in this case and as in other cases with all sorts of altering the commission's commissioners airth of disagreement with a majority of commissioners disagreed with that and the question before this court was whether that disagreement was rational so maybe i could just see say one other thing about the logical  objecting to exactly what the commission did in the end if i did notice that the industry data was not made publicly available what do you mean by the industry that i thought i read that the commission said we couldn't use the industry data because they aren't making it all publicly available at various points in suggested that there are other scientists found less risk of talent but yes the commission couldn't use that data because it was not publicly available and at what point did they lift the ban on to that would seem to me to play into how irrational it was that they were actually saying well now we're going to actually data quote appears to be pointing to exactly that which the commission ultimately made to look up of the ninety fifth percentile at women who are actually affected and jay if two thirty three they say using values above the ninety fifth percentile that justified a band with the of what the commission was intended slam half of the intervener public health groups in my time i'm going to focus on petitioners failure to establish standing to challenge this rule if i have time at the end i'll turn to some of the merits issues you've been discussing secretary the court shouldn't reach those merits issues because petitioners lack standing they have not met their burden of identifying a specific member would have standing to bring this on its own the only member that they identify with specificity is exxon mobil chemical company so exxon's lack of standing as i describe dispositive here as an initial matter the court should disregard petitioners claim that exxon is harmed by some sort of ill defined stigma that the rule cast over it validates petitioners waived any stigma based claim for standing by not presenting it until their reply brief addition or standing instead hinges on their last market theory that they present on page two of their opening brief that because the rule prohibits the sale of certain certain children's products containing certain talents exxon would lose a market for its delegates but there's no actual evidence that exxon is harmed by an inability to sell their relevant ballots for use in children's products covered by the bill exxon makes and sells d i n p as we've discussed this afternoon but that alone does not show that exxon is likely to be harmed by the rule the missing link here into the established that harm petitioners need to provide evidence that exxon actually wants to sell the i m p for using the children's seem to essentially avoid saying that they want to sell the i m p for use in these products and i think it's telling it's not a high bar for them to say that or in order for them to say if it weren't for the rule this is an area we would try to sell these products mr wallace's declaration if you look at it just states has begun or standing that exxon sells d i n p into the stream of commerce and where it eventually potentially could be used in relation to children's products that may or may not even be regulated under that exxon sells dilates that do or could end up in the products regulated under the rule but that's exactly what they need to show to establish a lost market entry that's actually fairly traceable to the rule and not some other val regulation either by congress or by another jurisdiction in this case and they haven't made that showing so exxon lacks standing to challenge the rows directly as you prepare this issue what's your best fifth circuit case on waiver the first waiver to make a standing argument and on reply you waive that argument not publish and authorities have no effect that it's not binding but the rules do say i can present it to you for your consideration  were found by c p s and testing and two of them the main concern was a substitution issue where if you ban certain talents these talents would then be used in substitution for them just to make the quick point and respond of petitioner's argument that you can look to the association of standing declaration submitted with the opening brief the summers decision supreme court decision explicitly rejects the idea that courts can rely on associations representation of what their members do at this stage in the litigation you need actual declarations from the members themselves describing their injury and i'll turn briefly now to the merits if there are no further questions on standing i want to put a fine point ninety fifth percentile argument and what it would actually mean it would mean essentially that an agency could not regulate if an activity or a product put at risk four point nine percent of the population no matter how grave the risk primarily was that when you get past ninety five percent is not that you know worried about five percent who are exposed is that the data is not usually above that number it is not you just don't know who is being exposed when you get beyond the ninety five percent of fair assessment of their argument i think that's a secondary or that that's there are two parts to that argument i'm addressing the first part now just that the idea that the ninety fifth percentile serves some sort of talismanic principle and regulation has no importantly never claimed that that was the sole rationale for which they were regulating and it was commission can change your view on things but just to set that when it first appeared and following up perhaps on what you don't ask and wasn't ninety five percent what commission was initially saying is about the extent to which we feel confident that the data will help us decide what we need to do things change and then it may be particularly completely appropriate or maybe not what was the real a bunch of that ninety five percent number when it was first used is irrelevant your honor is it's often represented as something occurring at a knife it's percentile and and this case because they had four pregnant women each level greater than one at the ten at the ninetieth percentile and for children around and around the ninety fifth percentile they just reported that and concluded that that was enough evidence to provide support for their proposed role did you have a point last point on that the second thing the judge southwick asked you about not the ninety five percent as it tells man but on the reliability of the extrapolation from spots had only one quite brief point your honor that the on the spot sample points the commission's point to the spot sample and can represent individual exposures was a point as to those particular individuals that were being tested and their long term exposures very briefly on standing in the trying to very quickly touch on each of the three merits points but understanding this is really not complicated especially with respect to d i and p because exxon makes the i m p it sells the i m p it doesn't sell it directly to children's toy makers it sells at the middleman and distributors and when a rule eliminates a particular market for that product it decreases the demand and that is that is standing that is not controversial whatsoever if you look at paragraph eight in the supplemental declaration even talks about exxon mobil believing that its products do go to children children in child care products to answer your specific factual question judge southwick pragmatically the i m p is the overwhelming market share here it is the overwhelming market share with respect it is really about g i m p in terms of market share absolutely the other ones are important because the agency didn't follow the procedures and as my friend on the other side admitted those are not even found in commerce in children's products many of them on the first merits argument regarding the failure to follow the procedures for declaring banned hazardous products i think the government's position is that that's simply stating the outcome of what happens when the commission passes this rule that it's treated as a band hazardous product but congress knows how to do that and other sections of twenty fifty seven the congress said this rule shall be considered a ban on hazardous products congress did not say that here it said the commission must declare these to be banned hazardous products in doing that it used the exact same language that is used section twenty fifty seven itself twenty fifty seven itself says the commission must evaluate the rule and declare it a banned hazardous product so it's a direct reference to a well worn procedural it's substantive set of requirements that the commission had to follow i also point out that my friend asked for chevron deference here but you will search the role for any construction or interpretation of the words to clear these products are banned products there are two points of the rule where the commission just declares we are not going to follow twenty fifty seven twenty fifty eight but is not construe those words or explain the rationale that's been given this morning so there could be no basis for deference so that leaves us very much where this court was in its august twenty eight hundred decision and acton's versus silberman where the an agency argued that it had to read out one particular provision in order to avoid conflicts and this court said no you cannot read out a provision that congress put in unless you show that it would be impossible to comply with both the commission has not even attempted to make that showing even if there are individual conflicts with particular requirements under twenty fifty seven the rule of statutory construction would be that the courts have reconcile the two statutes and in the attempt to give effect to congress intent turning to the us more scientific argument about individuals versus population i think the government wa very candid in saying one woman is enough in the data set and the problem again i think the court is grasping this in its questions as there is a disconnect between the spot sample based h i which the commission said and i'll just i'll read the entire quote on forty nine nine fifty five it said h eyes rest represent estimated population per capita valeted exposure not average daily estimates of an individual's exposure across time so it's completely worthless data if you're just looking at actual women if you can look and make some sort of population wide inference that it arguably could be validated and that's what the chap did when it looked at the ninety fifth percentile  making it can't say on the one hand we cannot use this data to make individual exposure estimates and then try to satisfy the statutory standard your honor asked about by looking at individual women so it's a procedurally defective rule and but it's also sort of a do over though we could see now back to the commission for them to say whatever they later say they would have to make some sort of rational extrapolations from the data but i think to the extent john i was asking is there any evidence here that everybody is at risk by the by the commission's own admission they can't say that any individual is at risk and from the individual spot sample data the commission says spot samples are variable and not representative of long term exposures so they can even say these women are risk and remember that the hiv metric is very conservative and doesn't really even measure risk if i could very briefly touch on notice and comment your honor that i take thirty seconds and thank you thirty seconds ok but the commission says there is no case where the agency is not allowed to shift the rationale so long as they keep the rule the same the fact they completely change the rationale doesn't matter and that's absurd on its face but b s f which we cited page fifty two is is on point and of course the commission can't change its rationale that's the whole basis for the rule and they point out that exxon mobil did comment trying to read between the lines of what the staff was saying starting to look at the ninety ninth percentile but we did not have an opportunity to comment on looking at actual women and that's where the conflict in the rationale really came in so you only have the staff even saying this one thing not the commission saying hey we're looking at actual women now and that deprived us of the opportunity to comment on that point