are ready to proceed with the first case which is jake's fireworks versus department of labor seventy nine five three six counsel if you'll enter your parents pl well the the secretary though has interpreted the regulation in combination with the directive as not having require the inspector to collect samples correct that that is their there's there's a reasonable position to be taken within that deference here i don't believe there is that the directive says you you must take samples you shall send it to be tested in all the cases that we've reviewed we haven't found a single case an inspection and they are uncertain so they take a sample here of course we had a fire doesn't that make a difference i don't believe it makes a difference because you don't have well first you don't have a cause of the fire determined nobody knows what exactly caused this fire so i think that if you know that the regulation of the muscle doesn't talk about fires and i understand that in the context that here i think it's black and white all the cases you have cases where you have the international coal in those cases it seems to me that they highlight the difference between where you have a pro to produce tech versus a dust where it may or may not be combustible depending upon the concentration of a particular substance here we know that the black powder used in the fireworks is combustible well i i don't think we know composition was more used so i think that's the point we're making is that we don't know that the secretary take make kind of again this wraps a lot of fireworks and it's got to be well i understand the resits but that let's let's stick with the directive and this particular citation is it your position that the substantial evidence requirements for firms here cannot be m expires doesn't deal with has chemicals we import finished consumer products packaged ready to go on the shelf and they're regulated by multiple agencies before they get here so they're exempted under the articles all the elements in that series which includes physical hazard when normal conditions of use you in your briefs seem to say it's the normal conditions of use of the ultimate purchaser the fireworks but included in that short and so honored storage and handling these items are not a physical hazar they're a box to move around and so i think that they do contain explosive material their warnings on the package sure and that but i think it's important here to consider that these are these are again consumer items this is the same thing in the same condition that goes on the shelf that an eight year old comes with the sad takes it out takes it home  or they're not set on fire is certainly not physical hazard i don't think that the public would have access to them if they were physical hazardous and of themselves and that's why i think that this normal fact should we give that deference in this case no i think that this is again this is very clear i think this court has affirmed that the reading of this i think that osha's reading this quite honestly just it helps t articles items which release not more than very small quantities minute or trace amounts of the hazardous chemical as long as these items do not pose a civic a risk or health risk to employees doesn't say anything about the normal use it just says be the traces of the hazardous chemical have to not pose a risk to the employees we are i think that president's chemicals perhaps again under certain circumstances here we're not dealing with the what are they compose that we're dealing with do they release as a risk and well doesn't this fly in the face of the evidence that there was debris in gunpowder strewn around this facility i mean if you talk about self contained but that doesn't sound very self contained well again this is where normal conditions of use comes in and other normal conditions of use they're in a package they're boxed up they're on a pallet they're wrapped that's normal conditions of use i think you know why why wouldn't it be normal sometimes for a package to have become not self contained in the course of storage and moving it around and that sort of thing that seemed to happen to this location well the location the accident was actually a cleanup operation from from it all i understand so i think that's that that's distinct from normal conditions of use and again normal would i think indicate what normally goes on  what's most likely to happen what happens more often than not and that is the packages are handled in a proper way and you don't have to stroll shouldn't there be a safe means by which to clean up a facility that the company has moved out well why isn't it normal to clean up afterwards and the cleanup involves cleaning up after the debris and gunpowder that was in proximity to the forklift truck  properly and i think isn't that the whole point of having the the regulation about the proper forklift i think that those regulations with a forklift again without combustible duff that doesn't come into play and we don't believe it does i think that the regulations regarding expanded inspection to go through to perform an inspection under the national emphasis program is irrelevant because it did now it conducted a fatality especially the fatality inspection with looking backward at the conditions that occurred at the time of the in at the time of the accident the cause of how national labs this program would have been forward looking you would have taken the dust samples so you know this is a using the forklift and and and my question is according to least according to opposing counsel that that there was a need to take samples under directive to to justify this citation that wasn't done in your response to that is what i know the director did not apply compliance of ok and why not because he was conducting a fatality inspection and not a pope not an inspection under the national emphasis program created by the director so it so the directive is not even relevant for case so what you're saying is that if it applies the testing should have been down that failure to test was not fatal to the citation correct and why is that of what fireworks are of from the the material safety data sheet and other representations as through the content of the container as containing fireworks  where would i go find wanted to see this the secretary says the written authority for the basis of that opinion that it doesn't apply is it is it written in i think it's an interpretive issue regarding the debts and the directors themselves and also the purpose of the directive as i said it was in to establish a program for conducting inspections under that directive which we didn't conduct the inspection and that  directive doesn't apply does the directive example of how the investigation's anywhere i mean it wears no no no i don't know where can we find some support other than on that i think we cited every face in the dirt in a direct mr when you should expand a fatality inspection or expanding special that was initiated for some other purpose and when i'm trying to make the fatality with final questions and if their argument is that even when you see broken fireworks that it could include things that aren't combustible such as calais cardboard