the central issue in this case is whether the department of labor legally fined alpha services for providing transportation to its forced the workers that's markedly safer than what the department of labor requires skidmore deference to d l to the department of labor's application of the department of transportation's regulations the district court affirmed the error be or administrative review boards decision finding  analyze the appropriateness of the administrative review boards decision the district court heard however because it was applied in completely the skidmore framework has four basic elements how thorough was the administrative decision was it valid was it consistent with what the agency does and has done and are there any other could i switch you to just some issues  invalid or as applied to forestry workers the regulation is that the regulation that was applied has to be applied it's applied regulation to apply because the myspace imposes a very specific subset of standards and specific set of decisionmaking criteria that have to be analyzed through the  prism of noise and comment roll making that statutory so if that wasn't there if misbah didn't specifically say you have to go through these four five these six factors do notice and comment roll making then yes they could do that but they purposes of this perceiving that section five hundred point one o five also can apply to alpha would how does that affect what you're doing today it doesn't really because our focus is on what's the proper interpretation of five hundred point one five what won't the way the summary judge use an answer to judge baez's question  applied so that's why i'm confused by the section that is that issue here is twenty nine c f r five hundred point one five ok that's a word you refer to by the department of labor and its initial misspoke rulemaking and the key is this is it's a bit of is that when the department of labor adopted that it didn't apply to four through workers but now it applies to fourth which is the ninth circuit has told us it applies to forty workers and actually that's exactly what the ninth circuit said it wasn't doing because remember i mean they interpreted to hit earth to apply the forestry workers well regulation no it's not my view that they can interpret the regulations in my view that congress required them if they're going to have forestry specific regulations regulations that apply to forestry that that they must  he's saying and i'm just maybe you can help me from a practical standpoint here what is what's behind all of this figure a slave let it get in an eight hundred dollar fine that was assessed nearly seven years ago what's really at stake for alpha am for the video the reason we're here is because safety matters elph is an industry that has been scarred by a terrible reputation of mistreating workers for years and alpha services  actively does what it can to change that reputation alpha services misters they harry has made telephone calls to families with workers who have been injured and has to tell family members that their husband their dad is not coming back and they'll make you know or their very injured if you've made one of those phone calls it matters a lot safety matters a lot and these crew curious it's not just  substantially safer than the fifteen passenger vans of the department of labor would allow and it's worth it to alfa to fight for the right to use these carriers and carry the trailers because it's not practical just to have crew was there some financial component that for alpha not being able to trailer things i'm sorry michelle i mean is there is a difference between the two vehicles in terms of if you you know when you is is the difference in what they can do with a vehicle and how they get things into the locations the digit the difference isn't so much with what they do with the vehicle the differences the practical difference why they have can't say double the number of crew carriers and have a is drivers misbah requires certified drivers with particular qualifications those are very very hard to find so if we tried tomorrow let's by double the number of crew carriers or number of pickup trucks we just can't do that because there are limitations on the number of numbers of available drivers so we just we can't do that we're stuck in that the safest way that we know to provide transportation in the environments we work in are these crew cares and which you're basically arguing carriers are safer than the bosses and that they haven't had a proceeding where you can make that case partly i want to say that if tomorrow that they issued a notice of comment are proposed rule we want to comment in parts of spain now what we really want is there's been suggestions in the government's briefs both in the district court in here that we don't want to be regulated we do want to be regulated but we want to be regulated right ok so oh i don't know and you tell me what you know what i want is a i want the district court's judgment to be reversed i want to be reminded to the district court or for this court to apply skidmore completely and thoroughly looking at all of the consider if it was so you really aren't challenging the regulation correct we're challenging the application the regulation i guess that brings us back to where you are then that's what i was getting at you really really you're saying ok even if you apply this to us they misapplied the  appeals board just got it wrong absolutely that's what you are and they got it wrong for you know for a number of reasons they got it wrong because they implied a word that doesn't exist in the  regulations original design versus design they ignored they mis interpreted the tast for how five zero one zero five is supposed to apply five hundred one point one zero five as opposed to apply or labor regulation says use controls use is the most important factor the arb they are be ignored that the error be general decided that because of the department of late that the regulation exams buses we w the police the corded him up with the department of justice representing the secretary of labor the first thing to point out we spoke a lot about their brief about waiver of issues and what they really argued before the in this review board  in the whole industry process of leave that aside because it's on the brief of the court wants to ask questions about it but the thing to keep in mind here about safety is that there are seven three kinds of vehicles that can be used here one is a bust let me just ask you w that i think a judge pious or judge fischer read from the record of particular statement on it was on forty one that talked about it was by mr hall and it basically ok we will also accept that for the purposes of this proceeding that section five hundred point one zero five also can apply to alpha of course we do not except that it's designed and constructed in a way that you know an interpretive interpretation to sign constructed that you know look locks in unsafe transportation campaspe be consistent with the m is p s a so what did they concede in that statement in front of judge tolman that that they're now trying to raise you know your honor it's very difficult for me to say what judge tolman said and his opinion is they waived most of their arguments we spelled out why and how they waived the arguments by stipulating that the statute cover them by stipulating that their employees are agricultural workers which is a term within both the statute and the regulation and their position is entirely different now we can talk about whether this is a truck or a bus would be happy to do that is that the issue is not so much about feet to the converted trucks because the issue is whether you can have a trailer attached to it the trucks themselves with the with the passenger compartments are subject to regulation under the regulation that flies to the standards for passenger compartments and if that passes muster onto that regulation there's not a problem with using them there's a problem with using them with the attached trailer the trailer causes the safety issues for as the d o t in the form of labor concern so that's really the issue here these they've they've been using these converted trucks with trailers attached to and that's where the violation occurs well i said about the trailer mr haas seem confused about my mention of the trailer so what so what what this what is this really about from your perspective for them why it's not the eight hundred dollar fine if they want to pull trailers they want to pull trailers apparently he says it has to do with the drivers and it's all to have their workers presumably if you have one vehicle and a trailer you need one driver if you can't put the trailer on the vehicle you're in the second driver there's no question about that but that's what the regulations require and these regulations are based on safety considerations you don't want the trailer attached to a truck so that's that's where this whole issue that that's what the whole issue boils down to if they have a second driver and they can haul the portable portable toilet and the equipment that they were previously hauling in the converted truck they can take that up separately and i can say can the workers in the truck to accommodate how many workers can this i'm not sure about that you're on your boat enough to satisfy them in the carrier  passenger no equipment and portable toilets and that is an opera that's not permit they're required to have a portable toilet with the workers and i know there are regulations in that right that maybe i'm not sure about whether it's required by regulation but it's certainly easy it's a good r so that's really the central question when you can attach a trailer to it so could you could back up just a little bit certainly sort of explain to me what happened here with this regulation that is after brisk ah after we decided well here's what happened in that case the court interpreted the language agricultural employment in the statute in the stand in the statute the regulation already had that term in the regulation and the and it's almost absolutely identical language so if it means what the court said it means in the statute then by by english it means the same thing in the regulations so did there's no reason to have the deal well publish something or issue a bullet no or no if they suddenly said this regulation now applies to forestry i think we come into this court we try to do what the court tells us to do and that's what happened here the court said you can't continue not to enforce this against forestry employees we said ok that's we will we're going to force now we're going to force that the regulation he says he says well you know there are different considerations here talking about forestry workers and you should have done a separate analysis with respect to forestry workers well your honor i don't think so because the same considerations that go into interpreting the statute the statute talked about agricultural employment the court said that includes forestry the same language in the regulation that would include forestry also what the court did this interesting thing is that the district court required the agency  issue new regulations this court reversed that part and it said it may not be necessary to do that and so the agency looked at it and decided it was necessary to do that now when they don't want to require when they adopted the transportation  regulations for the agricultural workers at first they look to the department of transportation standards that rids i guess they adopted the department of transportation yes they dotted it and it actually says in the regulation and cites the the the d regulation so it was an it was basically adopted because the d o t regulations apply to longer trips and the secretary of labor is authorized to regulate shorter trips and so this applies to as well to shorter trips decision in this case its standard of deference is well we if any we argued in district court that it was it was our deference and that's really our position but we didn't think was necessary to to push that in this court and for no the hours coming under some i understand that you're on what we said that court as i understand you're on there and what we said in this court and for no is that our brief was you don't have to decide this we will accept a lower level of deference because we can problem the regulation says that if you have a personnel compartment that you carry people and it's required to comply with certain standards but that doesn't apply the busses and so what the problem is is if you take a truck and you add this this compartment to it if you say that mediately turns that into a bus then you take it out of the very regulation that's intended to to set up standards for these compartments  and that doesn't make any sense at all the second reason is the language of designed and constructed now when you take a new take a pickup truck and you add this carrier to  it you might be able to argue that that's constructed that you know that the way it's constructed in the way that's designed to carry people on it but you can't say it's design you can say is constructed but you can't say it's designed because you haven't designed anything the only people have designed this and the people who designed the truck at the beginning and this is these are issues these are definitions issues there are intended to further the safety approach of the regulations  so that's that's the basis of the decision of the industry review board and we think that's persuasive in the courts that the trailer has no the carrier itself is a bus because primarily designed constructed a new fighting over you can attach the trailer yes so why did you act confused when i said something about a trailer i mean you're acting i was on the wrong case and it's all about the trailers i apologize for if i look i had to go back and do what i was i and i apologized for that yes it's about the trail is obvious that we can drive a crew carrier anywhere we want it either if the record the a l j looked and said i can't find any safety rationale they are be specifically rejected looking at any safety issues and one thing to know is if you put a crew carrier and have a trailer on drive  seventy four point nine miles it's legal now as for and i'd like to hit those last two arguments really quick in my last few seconds circularity there is no circularity we are always regulated rather by the general standards or by the