american economy and environment where it's manufactured how it's used and where it ends up and repeatedly he says and sixty two thousand and nine and as recently as two thousand and seventeen the agency has admitted that it lacks the critical quantity data that less than optimal from your perspective you know they have a duty to avoid duty to avoid duplication they have a duty to apply reporting obligated not to apply reporting obligations  that the fact that the n r d c would love to have the information the detailed information that may be an eye mark or other other other ways is different from getting sufficient information or adequate information in to determine that it wouldn't require reporting from the importer or the manufacturer of the car but it doesn't dispute that under the terms of the statute both the lamp and the car are murky at a product concept o does your honor we think that's clear from the statute it's not a man's rare kind of thing you know we don't think a man's red requirement either makes any sense in context or agree with you on that we understand their interpretation of intentional to mean something like knowing china i've no idea that there's any mercury in the battery that's in the touring how am i supposed to comply with the rule if i don't know that there is any mercury involved so two responses st is the record reflects that importers do know and we know that because state law if they do know they do know but if they don't know what are they supposed to do about it and then note no toy in america has mercury in it no but the ones from china it turns out do that nobody knows how did it how would we you know it's cars may be one thing because it's common knowledge that the headlights often have mercury switches but what about if you just buy something from abroad that you're interested in selling in the united states and it happens to have mercury and i mean isn't there some got doesn't it have to be some kind of as a practical matter knowing  to responses rather the st is that the state laws that require labeling and reporting market products distinguish the same way around the word intentionally as we think congress did here which is not imposing a no on requirement and there's no support in the record publishing that that is there any indication that any state or anyone has ever penalized somebody for not reporting mercury in a product that they did not know  existed i don't know the answer to that your honor well then how can you say there's no problem it's never happened this isn't real no one knows that that's kind of the problem in fact what some of these regulations is we don't know what's in the products coming from abroad that's that's right your honor but that the purpose of this statute the purpose of creating inventory is to learn about well i just don't understand why you why you have to take that on isn't it if it is the case that  company in the united states importing a car from germany who has every reason to know that cars from germany like other cars have mercury in their headlights why isn't it why isn't that intentionally informing a mercury edited product why isn't that all you've got to say why are you taking on this thing that somebody is l has to be libel for unintentional importation of things that they don't know are reportable story or are we don't mean to be pressing some sort of implausible reading we at the the interpretation that we press is that the manufacture of a market a product is intentional i don't think so at least if they do know that the product is contains mercury absolutely and the record reflects that importers do you know anybody has a duty to investigate to find out information respect your honor i'm not sure what the burden of that would be but we're not arguing that that e p a was required to impose that burden now with respect to the domestic manufacturer when i'm having trouble understanding in your position  the maker of the headlight is required to report that they use mercury that they put them in car headlights and that they sell the headlights to general motors what it is why is it not duplicat least why is it not a reasonable judgment for the e p a to make that we now know where this mercury is it's in the headlines of general motors and why isn't duplicative of them wouldn't be duplicative them to require headlights with mercury in them from a domestic source into the demand mastic sources are required or for that matter aren't they also required to report if they bought headlights from germany that have mercury and  source and the domestic source that manufacture them is also required to report the mercury that's right so what is unreasonable about the e p a deciding that in that context it would be duplicative and potentially even confusing to make a total inventory then have to get two different reports about the same headlight one from the domestic manufacturer and one from general motors and then they have to figure out and this may not be a terrible problem i'm not saying it makes it impractica but why isn't it up to them to decide we're better off just getting a report from the component manufacturer from the component importer and for anybody who's making something where they're putting the mercury in themselves why do they need to get two reports about the mercury in the headlight that comes from like and then when a separate report when it's put into a general motors car because an inventory of mercury supply and use requires the agency to identify both where the mercury begins and where it ends up and to propose before they know where it ends up in the headline companies reporting it goes on auto makers but but which and regulation to reduce mercury use he just is going to need to consider ans on particular products labeling requirements alternatives that are perhaps more cost effective and to do that it has understand where these products where these components are going to be used because they're going to have a separate rule for general motors than for ford if they know that it's going to domestic automakers from domestic manufacturers what exactly is the regulation that they're going to not be able to propose because they don't know from general motors that it's the one that bought the headlights from dayton had like no air and if you're under i think as to dramatically manufactured headlamps ending up  domestically manufactured cars they may be able to glean sufficient information so that one of your three things that you're challenging but they're not and challenging that one anymore and i think your best shot is with the imported  complete product because i'm going to be asking them how the heck do you have any idea what mercury is in the german cars if you don't require something about that but that's a different one the one we've been talking about is the is one of the three things that you either are or aren't challenging we are challenging your ok yes so then you're not really telling me ok you're on i guess i see your point it's ok for them to not do that you thought it must them some reason why you think that's moniker for the the industry that they're reporting to and that's insufficient for the purposes of the for the purposes of the e p a in terms of making its judgment as to what what what what the trade or whatever the other term is of mercury or can they make a reasonable estimate on what the amount of mercury is would be two responses your honor i think over time that two critically incomplete in one very important way which is that i'm required reporting only on products that are sold in imax states and i'm rick states ban the sale of a big category of very important that they're going to become a nation wide open source i'm one hundred the extent to which you can do calculations and projections and estimations that are reasonable without having to gather every detail of the information you w so whether that's permitted under the under the or under the statute we think in context it makes it makes little sense that congress would have directed manufacturers and reporters to report this information to  because e p a has attempted to rely on the arcadia before so it makes little sense that he a would have the congress would have required this reporting when it really meant actually just continue to rely on i'm or because whom but e p a collect information under its mercury inventory reporting rule and the nd question i think is what information is e p a required to report to its mercury inventory now the answer to the st question is to be the product of the answer to the nd question because congress has told us that the purpose of the mercury inventory reporting rule is to assist e p a in the creation of its mercury inventory so it's that latter question a question of what information e p a is required to include in its mercury inventory that i'd like to turn now ok can i ask you to address one only one of these exemptions and that is the exemption for a person engaged only in the import of a product that contains a component that is a mercury added products so i take it that would apply to a company that's importing german cars that have mercury in the switches and the on a company that knows that the products that they're importing have mercury in them ok could you explain to me how e p a would have any idea how much mercury is coming into the country in that situation given this exemption is there any way that that mercury is being picked up by some other aspect of your that might be included in assembled imported products and i think it a key point to make here is that the ime are reporting requirements while they are applicable in ten states require entities that sell assembled imported mercury added products that you're duplicating the ime are data all over the place every other regulation that you've got that's requiring data you could make the same argument right now that you could just extrapolate from the i'm or data so really you don't have to have any of these regulations  at i think that brings me to the implicit premise of your question which is that the inventory is somehow incomplete if it doesn't contain the information about quantities of mercury in that imported german car and i want to disagree with that premise because i think it's important to be precise about the inventory that congress called for what congress called for it was an inventory of mercury supply used in trade commissioner say that inventory is incomplete if it doesn't account for the mercury contained in products but congress didn't ask for an inventory of mercury generally and it didn't ask for an inventory of mercury in products what it asked for was an inventory of elemental mercury and mercury compounds elements of mercury and mercury compounds are commodity raw materials that are bought sold and used differently in mercury added products and other words there's a distinction between mercury as raw material and mercury contained in products and that's a distinction that congress has long recognized for example in two thousand and eight when why why do you require reporting on mercury in any products at all and i understand well even you are requiring are purchasing products abroad that are components that they are then installing they're not importing elemental mercury they're importing a headlight from germany and putting it in their car they're required to report interprets that is identify any products where mercury mean elements mercury and mercury compounds have been intentionally added so the battery for example that's manufactured elsewhere is a product to which somebody has inserted batteries have mercury in them and i'm required to report that i have imported batteries from switzerland if i instead am an importer of swiss watche and i know perfectly well that every one of those watches has a mercury and it battery in it why don't i have to report what is it that congress doesn't want to know about that way of bringing a mercury end product into the united states the distinction your honor follows from the requirement that congress imposed on e p a which was to identify products were elemental mercury and mercury compounds had been product which mercury elemental mercury market comfort is it's an indirect way but it's added to the watch you could have a launch without mercury in it instead you have a watch that has mercury in it and happens to be in the battery let me let me illustrate the have intentionally added rootbeer to that no ice cream no one would say that i'd intentionally added water to that analyze cream and the reason is because we talk about combining two products we tend not to think about combining all of the consist joint parts intentionally of one product that's that's that makes sense if for example we're trying to decide whether the root beer is properly labeled or something like that but if we're trying to find out what happens to mercury in the country that's a very different situation of going to  this has to do with the fact that congress wants to know how is mercury flowing through the country isn't that what they're interested in they are interested in that would pose suppose with the watches and the headlights we already know something about these are common uses of mercury in part because domestic manufacturers do the same thing suppose there is mercury in some kind of product coming from china no one would ever think that there was mercury in that product because the way we do it here there's no mercury but once one cement an importer learns that there's mercury in the products that he's getting from china the e p a doesn't want to know about that the  and care that there could be a lot of chinese whatever dry wall some of those are reason has mercury in it because it was made from the bones of executed chinese prisoners who ate mercury contaminated fish or whatever there's mercury in it nobody has any idea that there's mercury anything like that except the importer but we don't care and again i'm not worried about the importer who doesn't know there's mercury because i don't see how whatever your regula you can capture something that the importer doesn't know but if the importer is aware that he's buying this that has mercury in it he has to report it but if he knows that he's buying this into which this has been installed we don't care not that we don't care your honor it's that what congress has asked for is an inventory of elemental mercury and mercury compounds and are you saying you would be forbidden to that the act of congress does not authorize you to require this that the plain language of the statute would be such that if you did have a regulation that did not have exemption seven  and two that would be in violation of the statute we're not arguing that now you're not arguing that because you have you have discretion to make a judgment about this that is correct and you made a judgment about what exactly you made a judgment that hungers doesn't want to know the judgment that e p a made reflected in the provision you're referring to thirteen point seven two is that the best way to identify products to which mercury has been intentionally added is to require reporting from those who intentionally add products to mercury or to require those who import in the st instance a product to which mercury has intentionally been added that is the policy judgment reflected  trying to understand you are saying it doesn't matter to your goals or to congress's goals that the mercury was added to the battery in switzerland as long as i'm importing the battery directly then i have to report that i've imported that are e batteries with mercury in them if i import batteries with mercury in them that happen to already be installed in  and then it also says that to assist in the preparation of a mercury inventory any person who manufactures mercury or mercury added products or otherwise intentionally uses mercury in a manufacturing process shall make the position that manufacturing processes and products that intentionally and mercury don't include the watch that judge lynch is talking about that is correct your honor and that if congress wanted a broader search for marjorie they would've said it or they could say it in another sense absolutely but don't you interpret manufacturers to include imports isn't that part of your definition of manufactures well that is part as definition is set forth by congress correct right so congress said manufacturers means imports right yes i think you know the language that judge not i'm just quoted to you is that there's a requirement of reporting by any person is required to report when i ask for information sadly exactly when e p a asks somebody who fits right but you're not you're not contending that someone who imports the watch that i referred to is not a person who manufactures which means imports mercury added products wreck your honor we're not making and that is someone who does that and you're just saying you are authorized to make your own judgment about what information that person should report and your judgment is they should report nothing in the case of my watch importer yes your honor but i would phrase it slightly differently or are you because that doesn't sound very good doesn't our argument is that e p a is authorized to make decisions about which mercury added products manufacturers import so long as it meets the requirements that congress set forth in the statute again because i get i get it under the normal discretion that an agency has in implementing this regulation you can make reasonable judgments and what i'm still trying to get at is it does not sound to me as if you anymore than they have pointed to some language in the statute that dictates an answer that you must require reporting of this or you're not allowed  to require importing of that we're asking about what is a whether you've made a reasonable judgment and i'm still trying to hear not with reference to some bogus argument about what the statute does or doesn't say because you've just conceded that one way you've just conceded that the statute were allow you to regulate this watch manufacture and indeed that the statute says that that watch manufacturer has to report whatever information you think is reasonable i'm trying to understand what is reasonable about exempting the person who imports the watch with the mercury in it while still requiring a report from the person who imports the battery itself i think the line straw is just require everybody who imports and they they're asking for a whole lot of stuff that i'm not interested in right i'm focused on this particular exemption and what makes it rational that's all i want to know tell me what makes that a rational hundreds of small and of these that import assembled products that contain some component that contains mercury in it e p a did not want to draw reporting will that's going to ensnare all of those entities within the scope of the role because that would be judgment not only in terms of the costs on small importers but also in terms of the costs of whole aiding in understanding all of these reports that would come in otherwise yes and is that i wanted as well and i missed that in your brief that's an argument that's made in the report that's the basis for the judgment and that there's a basis in the administrative record for saying if we require all of these  that is that an argument that you can refer me to in your report which will tell me where in the administrator record there is information about that because i didn't i didn't get that that was your your point your honor i don't know any pages in our brief to refer you to look at that for noncompliance with this rule are quite high and so along with a thirty seven thousand five hundred dollars a penalty for not compliance there is a burden on e p a as a matter of good government to make sure that everyone who is subject to this rule is on notice  exactly what they have to produce and there's a discussion in the administrative record about the outreach it's going to be necessary already e p a talked about how it was trying to figure out how it's going to get the word out and that task becomes exponentially harder if you draw the lines to honour's everyone within a few block radius of this courthouse is subject to reporting laws from the state of new york and they report to armor the armor database reflects no more than triple digit reporters in the whole country  six hundred or so so the specter of thousands of mom and pops being subject to reporting requirements just does not compute that there is no basis for that in the record at the plant the premises of added products doesn't reference that argument that by that point it's a rather lengthy explanation there are several pages right that's right your honor so i mean that's one reason that's what we look for the explanation that's right at the point i was making is that at that explanation is not only not given by you it's preamble but it also lacks any basis in the remainder of the administrative boards that's right that's that's the explanation given in the preamble and that's the explanation that as judge lynch was along with that explanation because the important components don't tell us anything about the swiss watch import it as a whole that is imported with a battery already inside it will have no basis at for identifying the swiss watch it we would have no way of knowing if there certain kinds of products that's right your honor and we don't actually have to make it up the record reflects that domestic manufacturers have agreed not to use mercury batteries in their products but foreign manufacturers who are going to be exporting those products to the united states have not reached any such agreement so the domestic watch manufactured in in the usa is not going to have a mark or a battery for instance the language that the agency gives that the agency can use s codes reported for domestic manufacturers sample products to better understand the specific types of imported assemble products that may contain mercury is nonsense  respectfully yes your honor as to imported products at the fact that certain act components end up in the method products and commercially domestic products don't reflect that components are ending up in the and aren't reasonable estimates also also permitted they might be your honor we we think a better reading of the statute is that an inventory requires an accounting not estimates but the the real world  evidence of that is that the twenty seven thousand dollars inventory which relied on just those sorts of estimates lacked any sort of useful information and e p a was unable to make the recommendations to reduce mercury use based on that and are going to be we can't make a reasonable estimate if we have no idea what is in foreign products that and maybe importers know what they're importing that has mercury and it but even if they do know we're never going to find them and we have no way of knowing whether there's a big problem or a little problem or no problem if we don't capture some information about what is included in products that are imported home into the united states