good morning your honour's thank you very much for your consideration of this case on this beautiful campus as the court can understand this case is the critical importance of the scientific diving community and the continued viability of aquaria across the country as an overview the aquarium is a closed system the scientists are trying to replicate what mother nature does in the real world the purpose of the aquarium is to educate students other scientists and the public at large about marine life using live animals in an artificial setting but trying to replicate that natural environment the of houston aquarium has over two hundred different species of mammals and animals in the tanks and the scientists findings and observations are reported around the country to scientists students in the public at large using seminars using webcast and of course visitors who happen to appear at the aquarium every day the divers conduct what we call feeding and cleaning dives and the primary issue before the court is whether such dives are scientific or educational on the one hand or it's a secretary wants you to believe or simply routine maintenance or manual labor they are one and the other the exemption is your burden to prove correct yes your honor i'd like to say that it's not but it is  mouthful it is and it's not the sort of just the word soli keeps repeating solace for science done by scientists whose sole purpose is science absolutely and so i think the hard part of the case then is just isn't it true that when they're cleaning there's also a mixed value to it that viewers enhanced their entertainment they can look in better and once once we say that is it over with no your honor it's not and if you like me to deal directly with that issue of the cleaning because  obviously because you asked before i get into my other discussions the secretary wants you to believe st of the essentially the scientists they are at the aquarium go out to the grocery store get some windex spray it on the glass wipe it off and there you go you've got a cleaning up aeration and that's simply not so particular with respect to the glass or to the acrylic it could be algae oughtn't they have to decide what could be but i guess the question i'm asking is do you even concede there is actually a mixed value that it does enhanced the viewing experience if there is and if there's a mixed purpose to it doesn't the text of the regulations  at that point the standards apply yes or no no i do not concede that and let me go at it two ways first place there is it's not just scientific diving it's scientific and educational diving and the glass has to be clean so that people they are can look in and be educated about what happens inside the aquarium that is looking in seeing what all the fish are doing the different kinds of fish or the different kinds of animals so because we have that educational part to the scientific diving i think that interesting question that we also believe of course that it's also scientific but it's not just the people who are coming to the aquarium and looking through the acrylic glass we have got web casts that are broadcast to fifty or sixty thousand children in classrooms across the country and they have to be able to see what is going on inside the tank so no we do not concede that simply because excuse me it allows people to look inside the tank that takes it out of the scientific diving area because what you gollum's the event dives those are governed by the strictest and so i guess a little of my confusion is if you've got a vent dives that they in the aquarium they do have to comply and then you have the autopsy dives that are purely scientific or is it simply a question of putting the feeding cleaning into one bucket or the other i think that's right i mean we know that the mortality dives are considered scientific found that to be so and the secretary has not challenge that which of course raises an issue if the secretary does not challenge is that going in and identifying and taking out again animals so they can be autopsy to find out what the problem was that scientific but going into the tank in order to take care of live fish is not it makes no sense if in fact the mortality guides are scientific which they are the cleaning and and feeding dives have to be as well now the event dives i don't want to say that we concede that the event are not scientific i will agree we did not challenge it honestly honor it is a closer call but the number of that dives is very small and we did not want to divert the attention of the court and perhaps affect our credibility argument to you about event when it's really the cleaning and feeding dives that are the enormous number of dives that take place at the aquarium appreciate your candor on the point on the cleaning aspect of the feeding cleaning does is there scientific technical expertise that has to be brought to bear to clean entire tank keeping in mind that the purpose of the cleaning dive is not to make the the tank spic and span the purpose of the cleaning dive is to try to replicate what the animals see in the real  world if they were to have yours at all would you still have to do cleaning absolutely because we have the gross in terms of the algae but there's a nd part of it not is it just not only is it scientific with respect to the actual cleaning process but the materials that are used in order to clean the glass again it's not windex there is there are different materials that are used they could affect the ph to the is the acid and base level of the tank the ammonia level within the water that could affect the well being of the animals and the information about the cleaning materials that are used at the aquarium are shared with other aquaria around the country so it is not just the cleaning process itself but the emission dove into that and it's harder to make that claim if you if the biologists there doing the cleaning and feeding are taking any notes at all but you don't have to take notes in order to observe and collect  but was there testimony that then they got on the phone called the other scientists or was it was any of the cleaning feeding data ever given to this larger scientific community yes there was a discussion about going to seminars and sharing it at seminars and in fact this is be a lost and is partially my fault for not focusing on a more but the compliance officer pointed out that at the st time that he went to the inspect the aquarium because when he found it was scientific guy then he was handled  a study that the aquarium had done about the behavior of fish in the shark tank so it is scientific work being done but yes there is evidence that the scientists at the aquarium go to seminars and share this information and on the phone with other aquaria around the country again keeping in mind who are these divers they all have degrees in biology they are all scientists but honestly i didn't realize this when i before i got into this case they are all certified by the professional association of underwater instructors they're all certified by the national association of underwater instructors they are often compliant with the american academy of underwater that you think was the flow of the majority earlier just approaching science that met a level differently i do not mean any disrespect to the commission and i did not mean to indicate that with perhaps my body language there moment ago i think the commission ignored the evidence in the record and to me the most telling thing that the commission throw was in my nature i get this right nothing about the feeding or cleaning gobs involves investigation or study done in further e of a body of knowledge how on earth the commission could have made that statement to reach that conclusion the us is just beyond belief i was struck by some of the language the commission use for example and i don't remember whether it's in the brief or the opinion but in effect belittling the fact that to get to the shark tank you have to take the shark trainer or something as if this isn't really a scientific  area this is to raise money i mean this is a commercial activity isn't yesterday is should and and so the fact that it's a commercial activity  is a commercial activity seemed to be used against you because you're not a pure science lab i agree with you and let me suggest i've t shirt it's got to have them on it there were times flogging whatever it may be does that mean that the scientists who are doing the work are not doing scientific passengers no and in this case the focus has to be on the diving not else what else might be done within the within the facility but more simply and this is probably where i should have started it is that at the beginning when the regulations were being discussed there was a argument or request that the secretary to limit the scientific diving to nonprofit organizations and he rejected that and said no it can be both a profit and a nonprofit organization recognizing that there may be a commercial aspect of it frankly your honor i don't know whether the aquarium aspect of the houston aquarium facility makes money my guess is it probably doesn't because of the expense but that's what we're focusing on we're focusing on the scientists doing scientific tasks and reporting those scientific results to the scientific marine diving community across the united states and around the world is there any record evidence out there is so don't don't speak out the record as to why it took four years and five months from when the ael day room until the commission's decision was and no your honor there is not  of course i'm not speaking outside the record i don't think i have to think given the tenor of both the majority and the dissenting opinions my guess is there was an awful lot of discussion going on among the three members of the commission  reach that conclusion but but keep in mind that these regulations were passed almost forty years ago it was thirty years ago before the commission decided to issue its st citation on the commercial diving standards in an aquarium and that was the houston aquarium it had been done for thirty years and to our knowledge it hasn't been done sense so we are in a situation where we to make before i and my director is number one the the secretary at the beginning didn't think it was going to be a big problem distinguishing between commercial and scientific guiding because of the difference in tasks and the difference in  the tools and the difference in the backgrounds of the divers and he talked about several times your honour's know from the federal register about the type of work that commercial divers do i mean they use pneumatic drills they use underwater welding equipment they use explosives that's not what scientific dive want any of the does divers at the aquarium on but with the heavy diving helmets and the lines are there all scuba it's not sc there's a line that comes from the surface down to a positive buckling device on the belt the weight belt and then that goes to a mask to it not a foam mask and that's one of the things that the commission wants is to put a full  mask on and i'm sorry i have to say this but in the shark tank you wear a full mask that has electrical pulses in it there's a real problem with the sharks reacting to those electrical impulses which is one of the reasons why the discussion by the by the divers the expert divers that this could be dangerous for them i see my time is up but let me leave you with one quote at this part the aquarium is an ongoing laboratory experiment and vat is subject to the exemption from commercial diving standards  court good morning i mean any trial on behalf of the secretary of labor this case is about one thing whether the feeding and cleaning dives performed on the tanks that used an aquarium meet the commercial diving standards exemption for scientific diving now there's one word i didn't hear mr sheehy say during his entire time and that word is research the standard defines scientific diving the dives must be a necessary part of a scientific research or educational activity and they must be done for the sole purpose of performing scientific research tasks so that's that's the distinction that the commission made in it seems a little but maybe you're defending it which is yes this is an old scientific knowledge and yes it involves scientific techniques but it isn't research is that that's how i understood that paragraph of theirs i think the commission agreed that at least the parts of the dives that relate to care of the animals could be classified as part of the science of animal husbandry not the cleaning aspect but whether because of the way the definition is structured it's not a totality of the circumstances kind of thing where does it fall more in the in the scientific bucket or does it fall more in the commercial book but it sort of is because if we say they're not scientists here if they're not doing science then we are defining them as commercial divers which seems pretty in congress there's no other category they'd be well the elastic qualified in my written statutory definition for the exemption and therefore they fall under the commercial diving standard now that's the scope of the commercial diving standard is that it applies to every place of employment within the waters of the united states comma or within and the state comma where the diving part meet where diving and really related support operations are performed now houston aquarium falls within any state diving and support operations are performed there so it is covered by the standard in less it meets an exemption and the the preamble to the to the scientific diving exemption and there is some discussion that aquariums were never meant to be covered the if the language were so obvious you would think there would never have been application to koreans ever for decades so it clearly isn't the pure text argument isn't that compelling if it's never been interpreted that well i don't think your honor inspection the record i believe doesn't say anything one way or the other about inspections but this is as we know the st citation that we know of under this standard but oh she doesn't inspect every workplace in the country its resources are far too limited for that this was it what aspect of the diving was it going to what was the concern what the what though the record says or the l g decision described it as the complainant expressed concern that houston aquarium didn't know that the dive didn't qualify for the exemption that they were claiming i don't know what they were what they was afterwards or that the person made money was on their servers it was not specific to there was a concern that there were two way communications or there were harnesses or i don't know about that you know but now but you know i think that it is certainly possible that osha didn't consider aquarium's one way or the other when this when the standard was promulgated and when the exemption was promulgated however they're still covered by the standard because they are and in place of employment within and the state where where diving operations are performed and they don't meet the exemption i do want to point out that there  a variance process the asha act section sixty of the object provides that employers can seek a variance from any standard osha has an entire office dedicated to processing variance applications so if houston aquarium  believes that this standard endangers its employees somehow and that it can provide alternative safety measures you can apply for a variance it hasn't done that but just the fact that they believe that what they're doing is safe doesn't mean the standard doesn't apply to them  even if it were you know and those this sort of closed system argument that just in a crime is making you know likening the aquarium to the space station and saying this is all part of an ongoing science thing i think that it's fair to probably to characterize this is all sort of part of the to me to be pointing to generally to the activity right in the facility or what i call it and seems it's hard for me to understand how it's not an education and we're not arguing that it is ok it's  the nd part it's the it's the research the scientific research task and the commission found that there was no evidence that history of crime was performing any conducting any scientific research at all let alone and that animals and you're feeding dives in order to feed them have to be part of that research activity right i would think so i mean the dissent used an example of a scientist research scientist cleaning her equipment before i was going to be my next question right there a microscope you're cleaning your microscope does that mean that the thing is that research with that analogy st of all assumes that what is being done his research which we don't which we don't not only we don't concede but the commission found that there was no research  i want to address a couple of the commission's factual findings which are to be upheld if supported by one another on another man maybe that is the crux and i'm a little still baffled that if i remember it was footnote twenty where the majority of the commission said well doctors are not doing research and frankly i stumbled over that and thought you know if these are if these species are all in captivity in a highly artificial environment everything you're doing to keep them alive sounds to me like scientific research just as everything a doctor does is it hits in the full body of medical research i don't think the doctor analogy was the most illuminating choice that the commission majority could have made but i do i i don't think that i quite agree with your honor's characterization that everything is part of this ongoing scientific research science yes scientific research you know and i do think there's a difference and the commission i think to to sort of eliminate their deference the commission relied on the dictionary definition of research which is diligent and systematic inquiry into a subject in order to discover or revise facts theories etc and using that definition the commissioner what i think is a really important distinction between research on the one hand which is a purposeful activity conducted with a specific goal of learning more about a subject and then on the other hand activities that happen to advance knowledge on a subject which can be just about anything and the commission placed the  o j found that the mortality dives marginally qualified is the term she used a scientific dives because the employees investigate the cause of death of the animals and perform on crops the targets of an animal autopsy there was no if i could just just finish and sort of draw the contrast that i was going to draw the l g assumed that it was likely that they did derive data from these investigations and in contrast for the feeding and cleaning dives the commission found and just to point out that the commission's factual findings are to be upheld if supported by substantial evidence the commission found no evidence that houston aquarium divers recorded any observations that they made now  commission made up this rule that you have to write things down but it's not so much that you have to write things down in order for it to be scientific research as the fact that they didn't write things down when there's another piece of evidence that what they were doing was not research the other pieces being that they didn't point to any studies or projects that they were research projects that they were doing one form or diver testified that the divers didn't collect any data during the dives and they did not in fact produce during the hearing any data that they right and i think that's what the l g assumed i don't know if it's not right i think that that could be and that could be fairly attributed to the dot if i don't know that they nobody is suggesting that they divers have to be down there with some kind of underwater and writing things down for you i know i agree with you  would be so but with respect to the feeding would you agree that in order to know what the proper feeding is one has to have down with respect to the animals with respect to you know all sorts of things yes i would agree with that yes you have to have but you have to have some knowledge i would say call it knowledge you have to have knowledge going in order to know what they animals are supposed to eat to but you know i mean without suggesting that there isn't any science going on here i have to know what you know kind of food to feed my dog at home does that make it a scientific research every time i feed my dog i don't think so i mean what if it was a shark that well but i think and i want to point of the two summits exemption we're talking about says whose sole purpose for diving is to perform scientific research task and then you look at illustration which we read the exemption of the whole scientific diving does not include performing any tash usually associated with commercial diving such as heavy objects inspection explosions cutting or welding use to work so i find it interesting that this st sentence doesn't say whose sole purpose for diving is to perform their assigned their scientific research task or whose sole purpose for diving is to perform scientific research task by the divers and if you read this holistically their sole purpose for diving is to perform scientific research task meaning they are part of the scientific research that you have to keep the fish alive for the fish to have research on the fish and such and such is just all part of the whole and i find it so interesting illustrations given when i read these i think of the old underwater movies i used to watch as a boy with the fellows in the heavy diving suit you know fighting all sharks inside  for this goal but i think we have to read it as a whole i mean we certainly support reading the standard as a whole i think the terms of the exemption are th definition is just is narrow enough that you really can't get around that word sole purpose i think the legal numeration of the what you know what constitutes in these commercial diving tasks though that's probably just sort of a little bit of a redundancy because those are a scientific diver who was observing animals and also repairing a crack in a pipe that died would not qualify yeah well let's understand what we don't know about here while respectful your honor i think with the cleaning of the tanks which the tank walls which three histon aquarium employees testified that the purpose of cleaning the tank walls was to ensure a better view for the customers love scientists were sorbs the customers are part of the resource  of their jobs or on the work wife and the other could well respectfully honor looking at the definition of research which involves an intentional inquiry with the goal of gathering information and adding meets many of the criteria that are said to distinguish science from commercial correct it's got the diving board it does not proprietary right the data they have is not proprietary i think believe that was conceded but i that  in fact i don't want to doubt that the actual divers or very very experienced biologists so why wouldn't we look to osha guidelines and say this sure looks like it's in the science research camp and not in the welding in the north atlantic city well as the as the commission explained the guidelines are meant to illuminate the increase in close cases and this is in a close case because the definition is not is clearly not met and so even if  all of those additional guidelines which the commission found it didn't because there was a there's some language in the guidelines about performing scientific tasks that the commission found was not met but they don't mean they don't meet the language in the in the for the standard itself  that so that that the sole purpose is what is the answer here and you know i can't speak to what mr xi he said about the dangers that you know of sharks being big stretch here know what i'm forty feet but the power pack but it's like going after nance if we were to reverse what would be the adverse consequences where else would it extend to a situation where you think there would be workplace safety concerns well your honor i think that's sort of the problem with the finding for houston aquarium here is that they don't meet the plain language of the exemption to assume that we don't think you're right about that they did their sole purpose is in this captive species pretty maintaining aquarium sending that scientific exemption i ask you to tell me is that problematic in any other context well sure i think that there could be that would a ruling like that would open the door for other entities who maybe do offshore diving to sort of fold in some some science related things some animal observation while they're down there and say well it's all part of the same it's all part of you know where we're observing these animals to see how they interfere with our underwater rig platforms or confess really my lack of knowledge about offshore drilling loop that doesn't seem that credible well maybe not understanding honest question i think there certainly could be take type situations where the scientific research is being performed i mean i am you know not a marine biologist but if i can imagine some kind of tank where it is where something like that outside the aquarium context no i'm not gonna see my time is up thank you very much what about aquaculture i mean now that that's helpful to me would would with the aquaculture industry onshore crawfish whatever be able to say well it's in hansing the full body of science i don't think so because again you have the you do have the  situation but what the sole issue in that somebody that is going crawfish and is doing some scientific research say but that's not diving and we're talking about diving into the water and if i may one of the important points of why the secretary agreed to have the exemption in the st place is because of the incredible safety record of scientific diving it has throughout all the federal register but i guess it's just important to probe and i'm not great with hypotheticals but imagine a university says we want to restore the coral reef all sure and we're going to send biologists down hers restore the reef but they're actually out in the wild now they're out in the full ocean well with the logic of your theory be that they would not have to comply with these extra safety not necessarily because as the dissent pointed out the chair pointed out you have to look at the whole context focusing on the aquarium versus open water and i think it was judge duncan who said this or maybe your honor did you have clear water you have continuous visual sight you have tenders you know the depth it's fixed dead animals don't don't create a problem in the real world in the ocean open water they do in the aquarium so looking at it in the its entirety and looking at it with respect to the aquarium which is what into aquaria across the country which is what this case is before the court no there aren't any safety concerns should the court decide that the scientific diving exemption applies and if i may come back to your honor about the different citations and just review them very quickly the st one had to do with a full mask that would allow electrical communication to someone outside the tank you have continual visual connection in the aquarium because the water's clear and they communicate using hand signals which is which are well known in the science community they have clickers or they could tap on the glass and in fact these mass as i mentioned with the sharks can affect the behavior of the fish there's no reason to have electronic communications when you can see someone within the tank and you can't see in the open water the nd one was the reserve tank and as your honour's pointed out these tanks with the exception of one or six to twelve feet tall the easiest way to get out in case of a problem is to shoot to the surface which takes one or two seconds to change in additional air supply takes longer than that and not only vats the addition of boat to europe with mint does affect the ability of the reflects this is just shoot to the surface or some to me somebody is taller than six feet which i'm not could be above the surface of the water in a six foot tank anyway and the rd point was the harness now the secretary says you got to have this bulky harness inside the small tanks which of course is going to affect the divers ability to perform the task when the line the airline comes from the surface down and as i mentioned hooks positively into the weight belt and can be pulled up and that's have a diver gets pulled up if there is a problem and there is no evidence that that is not effective in fact there is evidence that is an effective way of getting people out of the tank if there is a problem eviden scientific diving community addressed the secretary and said wait that's going to take a long time and it's going to be very expensive because remember these are the standards in this exemption not only applies to the houston aquarium but the aquaria around the country and the secretary decided that the variance process was not to be used that an exemption was better because of the cost and unnecessary than