please the court my name is lawrence my hand this is the case your honour's interpretation of the section of the hour of the service tax and it relates to sleeping quarters for railroad employees and in order to give you a perspective of where we are today i think i need to walk you through briefly a chronology of what congress did with respect to the sleeping quarters  under that act in one nine hundred seventy six congress adopted a provision that said it shall be unlawful for common carrier or agents to provide sleeping quarters for employees which not afford an opportunity for free from interruptions caused by noise under the control of the railroad including clean safe and sanitary quarters a penalty provision was added that stated that any common carrier to this chapter or any officer common carrier to person including railroad or an agent so all they change there was the words common carrier to person the problem i think you have mr manners to balance that against the consistent interpretation of the f r a that these provisions did not extend to private hotels that's correct your honor in one thousand nine hundred seventy eight there was  syllabi where they satisfy x number of rooms for the railroad crews that come in after twelve hours of work they are required to go to this location unless they want to pay for it out of their own pockets an annual what they do it for long periods of time the railroad so they'll have a permanent space for the railroad employees it's not a day by day tight least they say alright motel x seven twenty rooms for providing services to a railroad certainly they this motel is providing the service to the railroad for providing sleeping quarters and what congress said it's important i i should violates the provisions of providing i stayed clean and sanitary quarters or a noise undue noise they it violates the nineteen ninety two stance that's our position section simply makes the secretary's current in other words existing authority explicit well up until that time you had a whole series of interpretations by the f r a that excluded these outside if they were correct but congress was making clear that if the railroads are going to contract out there were so in one nine hundred seventy six most of the sleeping quarters of the facilities were owned by the railroads and operated and keep in mind your honour's all the interested parties were involved with this legislation in ninety two the rail industry the rail workers were very concerned because the team was a major issue  very major issue and it was highlighted in the hearings by the national transportation safety board chairman in one nine hundred ninety one which led to these changes the party wasn't the only party here dealing with these move tell mom against the university that's correct that's correct and the federal government is saying well we can't do that because we don't think there is jurisdiction but again and i don't want to keep beating that dead horse congress would have had no reason to change the provisions in one thousand nine hundred two if what i am saying is not accurate two ways they could have made the legislation even more certain is terminations that have been up to that time that's what we're saying they did that's exactly what we're saying they did because why put in this line with your otherwise leave it the way it was and thing morning and may please the court my name is peter pockley i'm with the u s department of transportation office of the general counsel the petition for review of agency action the straightforward issue of statutory construction mainly the federal railroad administration is twenty five year old interpretation of the sleeping quarters provisions of the hours of service laws as not applying to commercial motels and hotels the reasonable construction of that allege that there were problems with the electrical wiring and with excessive noise his decision that it could not assert jurisdiction over this property is plainly supported by the structure of the act by sleeping quarters including crew quarters camper bunk cars and trailers for their employees and it requires that those types of the foundations be clean safe and sanitary and be free of noise under the control of the railroad that would prevent by relying on the parents tactical examples that follow the words providing sleeping quarters specifically types of quarters that have one thing or a couple of things in common namely the fact that they are basically whatever a didn't look at these competitions and said well what do they have in common and and those are the types of things that they have in common if you add commercially run motels or hotels of that list then those sorts of things those sorts of saudi stand out thing are the x p speaks of sleeping quarters referred to in quote cause one of the section of the cause of issue here in an area or in the immediate vicinity of an area in which railroad switching or hopping operations are in referring to clause two a talked about construction by railroads of quote lodgings in the railroad yards and that legislative history is reproduced in the text to government spree at the pentagon page three  by implication facilities not owned by the government or a brother or not present in a real your what's your response well your honor as we stated in our brief there's really no authority to take what is a penalty ially a substantive provision of law what the penalty provision does as penalty provisions often do is tell you who might be liable for a violation but it does not tell you what the violation is for that question which is really the threshold question you have to look at the provisions of the statutes that define what the substantive violations are and in this case in the context of the sleeping quarters provisions of the hours of service laws you authority to ensure that the sleeping quarters are free of interruptions caused by noise under the control of the railroad well so let me such as the sierra motel are often miles and miles away from the that is your honor but if that were how one should read that provision then that would have centrally read out that provision because in that case one could imagine that any type of noise would be quote under the control of the railroad and if there were any doubt about that the legislative history specifically said i'm going that's on this on page appendix three of the government's brief that the phrase under the control of the railroad matter with respect to the later amendments that you to you place and so much went on about that and you would have seen this i think because for one it would have meant congress was commanding an agency  to regulate an industry that had never regulated before subjecting that industry that had been never regulated by this railroad safety organization to be subject to inspection and civil  debate on this provision either in the seventy's or later on when the penalty provisions were vost it would also likely some extent intrude on what is a traditional area of state and local regulation congress to give agencies the power to do the preamp or to share regulation of these areas when they do so is usually the bait and they usually stay so on there is none of that with any of the pieces of legislation we're talking about here it would place new responsibilities and new burdens on the f r a inspection force in addition to expect inspecting railroad properties track hazardous materials transportation  contractor who is subject to penalties under your interpretation but excludes the four total moves that's a very good question your honor and i think and i think that the example would be for example in a case where a railroad has its own crew quarters in a real yard but decides it wants to contract out the actual operation of those proof quarters to a company that is experienced in providing accommodations or or food service which is usually also provided in these sorts of facilities that and and and leased out them then you would have a situation where where the act would apply that is that is simply not the case here the question arose regarding penalties against the  but also the i think the railroad is well under you to use construction either one could be could be held liable that i think really sums up the government's the government would have you believe that this was done only by the f r a that's not what happened i happen to be involved in that legislation and the f r a consulted with the industry consulted with the national transportation safety board all the interested parties in putting this together there were many many amendments to the one nine hundred ninety two safety statute not just the hours the service act provisions and  everyone all the interested parties were involved in this it wasn't just f r a they did technically put the language together but they weren't the only parties involved in the policy of this decision making that the sleeping quarter and it's that sleeping quarter is the active decision and say whatever the case may be the carrier is responsible also i want to make that clear because they are required to provide the sleeping quarters which are safe and free from noise under their control we're not talking about being next to  the the airport and a hyatt being covered that's not what we're talking about we're talking about all over this country all the small communities everywhere else where the railroad acility but they can't control the noise that's correct that's exactly i agree we're saying that if they if they choose x the syllabi at least make sure it has the minimum  requirements so that people can get sleep we're talking about safety here and every day you read causing accidents and if we can't get sleep that is the employees can't get rest this is what congress was trying to correct yes i was on that panel as you well know and i'd be curious in terms of how you would distinguish that case from this primarily the statute in the two thousand  the section that you interpreted was not changed by congress that was why the court concluded that the twenty five year interpretation by the f r a had great  relied on that deference but here congress changed it in one thousand nine hundred two that's the distinction and i think it's a significant distinction and the other point i want to make is just one point regarding said that provide was not what is commonly understood to be and moreover they alleged to have drafted these provisions so if it's if it's ambiguous th panel will take a recess before hearing the final two cases which i must say raise some very very interesting issues it occurred to me in reading the sanchez and the clay worth cases that we have two very interesting opinions from highly respected and distinguished district judge who are reached absolutely opposite inclusions with respect to whether section thirty subsection thirty day provides a private right of action so i think the panel will be quite interested in the hearing of the developer and then the contrast between the two opinions and i would counsel those of you who are going to be arguing that those two cases to help