properly excluded evidence and testimony concerning the secretary's actions in two thousand and two thousand and four to transfer other similarly situated carbon plants from the jurisdiction of the mine safety and health administration or not that's the argument that you're not going to the m exciting story yes that is the definition in section three i of the miner act and again all of those activities are typically done at coal mines and breakers  screens and again there was testimony at trial that the type of screening that is done is not considered sizing you bring up some interesting arguments which you know are i guess more persuasive but how we've got a fairly well established by you case law at this point in particular the arna services case how do you have your around that very easily all of the cases and this is consistent forty plus years of precedent on the third circuit all of the cases where m should jurisdiction has been found a lie has dealt with rock hall that has not yet been processed it has not yet entered the stream of commerce the coal that we purchase from these breakers in coal mines is the same call that railroad steel mills schools hospitals and other same it's just that it different stage in the stream of commerce that distinction that you're making where in the statute is that distinction exist and how do you deal with the language and i think it's a report that talks about any doubt in terms of the circuit that workers have to work with coal being processed and not the product that is ready and our commerce it's undisputed here that the coal that we purchase has entered the stream of commerce so at that status promise equivalent to the functional test that the operators of facilities used in the work of preparing the kosovo extracted that scenes in other words for the downstream it seems like it's  us and some of the coal goes right out the door in the same shape that we purchase is a process by extractors of coal sometimes and there's also what are called breakers which may be different companies we are not of breaker and again the trial testimony of knowledge that we are not a  and other companies that we create carbon products when you get seventy five percent of the products we manufacture have not on mine material mixed in there is only a small percentage that is pure coal that is just read bagged and shipped to  believed their products to be under osha until they found out that they were actually receiving and dealing with and processing raw call at which point they asserted jurisdiction and we would agree that that is correct in the r n s case so again the t haven't we all used that well the cases all come down in the same way from the third circuit and the same thing on the fourth circuit the seventh circuit and the eighth circuit all making that distinction and again and so we're well you know again i have to go back to these black long cases which you cannot exclude consideration of because they all arise under the same statute and the same definitions are plentiful you create a jurisdiction of the mind of conceit yeah right but but section title four of the mine act is the black long law and the definitions used to confer jurisdiction for purposes of black lung benefits are the same roll you know which is if you took emphasis propes that this of saying you don't have to do all of these things to be a coal mine it would lead to a service else you could cherry pick one item out of they are loading or storing and on that basis all of the functions under section three i need to be considered in there try to talladega and schmoke and clearly does not do those it buys process or previously processed and prepare call it doesn't have the equipment to court my name is sarah johnson and i represent the secretary of labor this morning i'd like to make three points to assist the court in resolving this case the first is that the court can decide the legal issue presented on the new area of mind actress stiction so starting as early as one nine hundred seventy nine without sperry this court held that the work of repairing coal or other minerals is included in the mine act even if the operator is not also extracting the coal so you can separate the functions of extraction and preparation and in that case in fact sounds very didn't even start with what we've been calling rock coal but that term is not used any where in the mine act the company bought dredged those terms so if we go back to section eight or too high you know that the the this statute has a very specific definition of the work of preparing a cole and and it says that  subject to the monarch yes and we have examples of that very situation in the case law from this court so going back to our ines services you know in that case there were really three phases of preparation so the first part of the preparation you know happened back in the early one nine hundred the extractor pole the coal out of the ground and initially prepared it then and the sort of the rock used from that from that preparation process operator subject to the minor i think those are the hardest questions and and the cases have tended to say that if that is at the end of the longer preparation process that preceded it then those and then you have the catch all phrase that that says you know that covers preparation functions that congress may not have included in that specific list and when you look at that that mission i mean there are some clues that  lead to this mort's functional test of the commission's functional test the idea of work right action being performed the idea of preparation as a process right so a continuum of activities from beginning to end and so courts ha seven consistent position throughout and the precise legal question in this case which is whether whether section eight o two why imposes this rock hole requirement or limitation on the agency  secretary understands that a custom corporation facility has to be engaged in the work of preparing the coal it's not it's not a set it's not a separate thing it does have to be engaged in the work of preparing the coal under section eight o two i custom whole preparation facilities which seems to be another another creature and and the secretary understands custom corporation facilities to fall within the broader category of work of preparing the coal but it might be as more specialized kind of facility percentage how do we look i mean the way this circuit has looked at it in the past is to say is the company performing any of the activities on that list if so which ones you mean just one just so easy sure and and that and then air products the cambria generation plant that that plant took the coal that had been processed once on the site that had been loaded by our own ass and then it further prepared it  all of the enforcement and interpretive and policymaking responsibilities are assigned to the secretary and education is assigned to the commission it's like a court and it has no policymaking role so even under a meta analysis the secretaries litigation position where the commission is entitled to controlling their friends and just to just say here that the secretary interpreted section eight o two i to say that there was no rock hole requirement and the analysis is needed but if there is one need that justice in the george harms construction case skidmore deference at most should be a court of it so it's only their position is only entitled to respect to the extent that it is persuasive  and that was the case dealing with the you got department of labor as well with regard to deference as well the exclusion of evidence in this case relieve the secretary of having to explain the inconsistency is in their position took in two thousand and four every view of these carbon plants and the two that asked to be released from them should jurisdiction one in two thousand which then triggered the two thousand and four camel and the keystone filler all of which do exactly the