terms all the employers in workplace is subject to the occupational safety and health and the commission departed from this present ruling in section six a standards apply only to those industries already covered in the other case the back to case which is the case under construction safety and standard again the six a standard was applied to a different industry that was construction management firm which was different from construction either commission decision one do you have a sense of how many other regulations would rise or fall into you are there commission decisions that this decision upholding those other regulations as applied to the industry generally that the commission would sounds like there's a lot of other identically situated well sheely regulations let's regulate all as well that's true and if there were commission decisions upholding those other regulations as a head whether there were any during that period of this question was addressed by one of the amicus briefs building trades union very kind of the number so to action to the occupational safety and health and the secretary's interpretations supported by contemporaneous regulation twenty don't see a far nineteen town point of an area in which adopted and extended established local standards to every employer employee and point covered by the act the fact of that regulation was adopted in the same time saying almost exactly the same thing  can you get under the secretary's interpretation of can you give me an example of a regulation that would be unreasonable what's the limit on the secretary's interpretation  well what the secretary cannot do is add more protective qualities to the standard the more protective requirements to the student in question he can extend the number crafted for one industry but it doesn't really apply well to the to the to the new industry and therefore it's it's in fact providing more protection than than was them but there is no bar in our view to the number of to the employees who can actually be covered by the existing sander's long as these are industries that are covered by the occupational safety and he invalid because they really didn't explain the change in that short period of the summer seventy one to september seventy one but the commission or this was the secretary of knowledge that a change is being correct you're not so is that a sufficient explanation as assuming that the explanation for the change was necessary well we think it was efficient  of its application just to the industry is covered by the original source standard and that was a mistake and the fact that we corrected that mistake within three months is a strong indication continued to apply correction regulation for the next forty nine years revocation was reasonable this was not the case for the secretary changing his mind but of simply bringing his regulations into consistency and to the industry is it isn't it eric choirmaster that the standard it's going to be applied to the industry has to be suitable their industry or about am i wrong about that well i'm not sure exactly what you're asking but it's certainly true the standard has to apply for in to its terms to the industry or the particular circumstances in question and in this case that application would be determined by whether the employees may be exposed to the hazard on exposure to injurious corrosive materials so that would definitely be one of the has to be that hazard for the standard to climb i guess what i'm getting at is are the secretaries here do it is is is it is it required of the secretary to adapt that particular standard to the particular circumstances of the certainly applied to construction industry and the secretary informed construction workers throughout this period that this was one of the standards that was originally considered general industry standard later was adopted as a construction standard that apply to them and the secretary did this among other things by publishing federal register notice back in nine hundred and seventy nine called identification which is specifically identified  standard as one that would imply to construction workers so if so why can't there i thought there was a process variance or something where lawyers can't comply for amendment modification of the standard and he would never do so i'm trying to separate from that this is a company could say i don't know what it is certain companies are doing that because of where we do what we do or how we do it or look different in the construction industry than it does in manufacturing industry there could be there could be annotations may depending on the nature of the industry  the same in both cases it is having the same about a water very same distance from the workers everything's the same well we're just talking about a bare bones wording of the standard here and the standard basically says that we are in boys may be exposed to injurious gross materials the importers will provide quick wrenching facilities that can be accessed very easily and emergency situations that's not to say that adaptations cannot be made but as far as this particular application is concerned the wording is the same the writers i requested three minutes for rebuttal hope that's the the secretary was not permitted some exceptions of changes when we adopted the established federal standards but that's what the secretary did here when you change the affability the standard from a factory to construction even manufacturing with a federal contract is no different than now your factory without a federal contract and the secretary has never said the contrary and the secretary didn't because the legislative history as shown in the sen report and the house report to by the way shows that congress saw that that congress are exactly that that if you have manufacturing with a federal improve safety or health you know how if all the world to do is stay in the same sector where you've said everything is the same with there ever be a situation where the secretary would determine that extending it from allowed the secretary to do was to take a standard here we'll talk about when that applied to contractors and it could extend it to people who are in the same industries manful manufacturing group even if they weren't covered by the original standard and i could do that because the problems are going to be the same the operations of industry are going to be the same the need for safety is going to be the same but congress was quite explicit that when it says the secretary will adopt these federal standards as national to national health and safety standards there are going to be situations where in doing so it would not increase safety or health and that could be if they stay in the was keep everything in the same sector white would have thought there'd be concerns that that movement that's i think in your minds of the smaller more moderate movement or whatever have a situation where it wouldn't increase don't see anywhere in the statute that makes clear the argument that you're making which is that the secretary can not apply these any established federal standard to chevron step today and you have to show that the secretary was somehow and reasonable to not read into the statute the language you're reading into it now how do we get there because the language you're using this is not in the standard for that sector it doesn't say section three of the act which is quoted in our brief and is relied on quite expressly on this exact point section thirty eight which the supreme court house held must be applied  these kinds of cases this is the definition of occupational see directly helps and yes it is standard is reasonably know is a standard as reasonably necessary or appropriate in employing and in places of employment now the only contractor manufacturing that's what contracted manufacturing but osha has never said and the entire premise of the legislative history and i would encourage honest to read the senate committee report on this point the entire point was a congress where there was no substan legislative history it doesn't have that nero reading i get that you have an argument about legislative history before you go that was that about the statute itself it's not clear because it's says it's based on a whim but it's also well that's the problem it doesn't saying in the statute and you have to convince us that that it's unreasonable ok to reject it if the word employment means any place reasonably necessary or appropriate in every place of employment that's the problem for ocean here if you look at the words of the statue for example as a score so the steel apply a construction standard for example under the construction safety act from constructed with a contract the construction without you're not making a substantive change that was the whole point that was  didn't allow the secretary to extend the quick drenching rule beyond the manufacturing and service industries that were covered in the contracting contracts under wash hilly act or are you making an argument and change the side of the source of authority for making the change and said why they were making the change because this is more protective inconsistent with the congressional intent but why in the context of that in that st two year period that case that that is not a sufficient explanation for the change them but they never explain that change they just like what they were trying to accomplish but it never explained why they made the trip why they changed their mind several months before they thought that all apply only to manufacturing three months later they said oh no they can apply to the world who struction underwater construction i have a case involving underwater construction and the crane standard there was a stranger applied to underwater construction going to osha but i found out it was originally a war fuel is their very strange so they never explain why they made that change had to not make substantive changes that's the principle applies here osha cannot credibly say they didn't make a substantive change its own rule making documents in other room they didn't our posing council also makes the argument that organ only ministry of the albums required under the case i'd like to point out that that's not an accurate description of the case made does