Farmworker Justice Fund, Inc. v. William E. Brock, Secretary of Labor

WILLIAMS, Circuit Judge,

concurring and dissenting:

Moved by compelling evidence of the plight of many farmworkers, the majority speeds to their rescue. In so doing it attempts what courts are least suited to do: to allocate the resources of an administrative agency. Differing on several issues, I write separately.

I agree with the majority that Heckler v. Chaney, 470 U.S. 821 , 105 S.Ct. 1649 , 84 L.Ed.2d 714 (1985), does not bar review. I write separately on this point only because I find the path toward reconciliation slightly more difficult. But, where scope of review is at stake, nuance is all. Justice Frankfurter noted in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 487 , 71 S.Ct. 456, 463 , 95 L.Ed. 456 (1951), that Congress in the TaftHartley Act had expressed a “mood” on scope of review, and one may say more generally that such issues are always ones in which the court strives to achieve the correct mood. I believe the mood compelled by Chaney is slightly more deferential than the majority suggests, particu *635 larly in review of the Secretary’s decision for abuse of discretion.

Once we undertake review, I find myself at almost complete odds with the majority. In reviewing for errors of law, the majority finds that the Secretary relied on a generalized preference for state regulation inconsistent with the statute. While I agree that such reliance would be an error of law, I believe the Secretary cannot fairly be said to have so relied. In concluding that he has, the majority wrests agency language out of context in order to obscure the Secretary’s well-intentioned effort to reconcile his duties to assure an adequate working environment for farmworkers and others with Congress’s express denial of jurisdiction over farms employing fewer than 11 workers. Oddly enough, however, the majority discounts the Secretary’s genuine error of law — his mistaken understanding of the preemptive effect of a federal field sanitation standard.

Second, the majority finds an abuse of discretion in the agency’s decision to withhold federal regulation temporarily in an effort to induce state action. Here the majority concedes that the Secretary may consider the adequacy of state regulation in determining whether to act, and, implicitly, that he may employ the device of threatening to impose federal regulations if, within the period for which he stays his hand, the states fail to respond adequately. But the majority finds his decision improper on the facts of this case. The defect in the majority’s analysis lies in its failure to reach the key issue: whether the health benefits from immediate action on farm-workers are greater or less than the health benefits that may be achieved by use of the pressure tactics, including benefits arising from the Secretary’s deployment of his enforcement resources in other workplaces.

Part I of this opinion explores the appropriate scope of review in the light of Chaney . Part II considers the asserted errors of law, both the one erroneously found by the majority and the one discounted. Part III considers the alleged abuse of discretion in the Secretary’s decision to delay. Finally, Part IV addresses the impact on this dispute of an earlier settlement agreement between the parties.

I. Review of Nonpromulgation of Rules After Chaney

In Chaney persons condemned to capital punishment by lethal injection requested the Food and Drug Administration (“FDA”) to take enforcement action against the drugs in question. The FDA refused and the Court found the decision to be “committed to agency discretion by law” and thus, under 5 U.S.C. § 701 (a)(2), unreviewable for want of any law to apply. In reaching that result it invoked a presumption against judicial review of ad hoc enforcement steps.

Chaney is not directly applicable; the Court there expressly noted that the case did not “involve the question of agency discretion not to invoke rulemaking proceedings.” 470 U.S. at 825 n. 2, 105 S.Ct. at 1652 n. 2. The form of inaction here — a delay aimed at promoting state regulation in order to eliminate the need for federal action — presents reviewability issues quite similar to those finessed in Chaney’s footnote. 1 Nonetheless, the principles announced in Chaney cast a considerable shadow over the present case.

In arriving at its negative presumption, the Court in Chaney relied on three features of nonenforcement decisions. First, such decisions usually require agency expertise and coordination in setting priorities for the use of scarce resources. See id. at 831-32 , 105 S.Ct. at 1655-56 . Second, they usually involve the agency’s decision not to “exercise its coercive power over an individual’s liberty or property rights.” Id. at 832 , 105 S.Ct. at 1656 (emphasis in original). Third, they are akin to prosecutorial decisions not to indict. Id.

*636 The first element, resource allocation, is clearly relevant both to the garden-variety decision not to initiate rulemaking proceedings and to the present case. Here, however, the issue differs from simple noninitiation of rulemaking in that the Secretary has already committed resources to the inquiry into farm working conditions and the advisability of regulation. Thus, as in Motor Vehicles Manufacturers Ass’n v. State Farm Mutual Insurance Co., 463 U.S. 29 , 103 S.Ct. 2856 , 77 L.Ed.2d 443 (1983), where the agency conducted rulemaking proceedings culminating in withdrawal of a prior rule, judicial intervention involves a relatively slight intrusion into the agency’s rulemaking agenda. Affirmative promulgation, however, will obviously require enforcement resources, and the choice of allocating them to the farm, as opposed to other workplaces, is a Chaney resource-allocation issue writ large.

The second element, non-use of the state’s coercive power against a citizen’s liberty or property, is also relevant both to conventional decisions not to initiate rule-making proceedings and to the present case. As in Chaney , the Secretary’s inaction here will leave the state not acting against the liberty or property rights of citizens.

The third element, the analogy to prosecutorial discretion, appears to distinguish this case from Chaney . The Chaney Court does not identify the characteristics shared by prosecutorial discretion and agency nonenforcement (other than the two elements previously mentioned), but two such characteristics leap to mind. First, prosecutors and agencies typically have to make innumerable decisions not to enforce or to seek indictment. Second, each such decision typically is very fact-rich, requiring deep involvement in the details of the individual case at issue and little legal analysis. By contrast, decisions not to initiate rulemaking are less likely to be frequent and more likely to turn on the scope of the agency’s authority. Almost by definition, rule making, or its negative, entails consideration of broad issues that are likely to become, or to turn upon, issues of law.

Supporting this analysis is the Court’s distinction of cases where an agency “has ‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n. 4, 105 S.Ct. at 1656 n. 4. Such abdications would presumably be infrequent and, when they occurred, would present issues of legal interpretation rarely seen in the typical fact-intensive decision against enforcement. Thus it appears that the prosecutorial discretion analogy (apart from its recapitulation of Chaney’s first two factors) does not forcefully apply to a decision not to initiate a rulemaking (or act as the Secretary has here).

Moreover, under the Administrative Procedure Act (“APA”) refusal of a petition to initiate rulemaking provides a focus for judicial review not present in conventional nonenforcement cases. In distinguishing enforcement action from nonenforcement, the Court in Chaney noted that “when an agency does act to enforce, that action itself provides a focus for judicial review,” allowing a court “at least ... to determine whether the agency exceeded its statutory powers.” Chaney, 470 U.S. at 832 , 105 S.Ct. at 1656 (emphasis in original).

Here the APA provides a similar focal point. It requires every agency to provide opportunities to “petition for the issuance, amendment, or repeal of a rule,” 5 U.S.C. § 553 (e) (1982), and to give notice of denial of applications or petitions and “a brief statement of the grounds for denial,” id. § 555(e). The combination of these requirements suggests a legislative expectation that agencies either declining to initiate rulemaking, or delaying final promulgation on the sort of theory alleged here, must reveal their thought processes. That expectation in turn suggests that courts may review such determinations for errors of law.

In sum, I find noninstitution of a rule-making distinguishable from nonenforcement decisions in that the former tend to be (1) less frequent, (2) more typically *637 fraught with legal analysis (and therefore potential legal error), and (3) characteristically accompanied by public justification under the APA. Thus I believe that Chaney does not overturn prior decisions allowing review of agency decisions not to initiate rulemakings and, by inference, decisions of the sort the Secretary has made here.

Our cases, however, have rightly emphasized the high degree of deference to which a decision not to initiate rulemaking is entitled, see ITT World Communications, Inc. v. FCC, 699 F.2d 1219 , 1245-46 (D.C.Cir. 1983), rev’d on other grounds, 466 U.S. 463 , 104 S.Ct. 1936 , 80 L.Ed.2d 480 (1984); Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1221 (D.C.Cir.1983), and that such a refusal is to be overturned “only in the rarest and most compelling of circumstances,” WWHT, Inc. v. FCC, 656 F.2d 807 , 818 (D.C.Cir.1981). Such judicial interventions, we have observed, “primarily involve plain errors of law, suggesting that the agency has been blind to the source of its delegated power.” State Farm Mutual Automobile Insurance Co. v. Department of Transportation, 680 F.2d 206, 221 (D.C. Cir.1982), vacated on other grounds, 463 U.S. 29 , 103 S.Ct. 2856 , 77 L.Ed.2d 443 (1983).

This leaves open the scope of review of the Secretary’s discretion to delay promulgating a field sanitation standard in the hope of encouraging state action. See Majority Opinion (“Maj.Op.”) at 631. This exercise of discretion involves precisely the resource-allocation issue identified by the Court in Chaney as a reason for presuming unreviewability — the question whether health gains from OSHA enforcement will be maximized by the Secretary’s strategy or by that of the majority. This court has explicitly recognized the Secretary’s discretion to set “priorities between the various occupations that may require standards” and “the Secretary’s right to refuse to adopt any standards even though the whole [rulemaking] process has been exhausted.” National Congress of Hispanic American Citizens v. Usery, 554 F.2d 1196, 1199 (D.C.Cir.1977). But, by reading the Secretary’s commitment to issue a standard if the states do not take adequate steps to regulate the area as an absolute commitment to allocating federal resources to this problem, see Maj.Op. at 623-624 n. 11, the majority sidesteps precisely the point that counsels judicial restraint: that the effectiveness of the Secretary’s use of resources in this area comes at the expense of his not using those resources in other areas. Without acquiring a solid grasp of all the potential alternative uses of the resources that will be required for enforcement of the farmworker regulations, no court can intelligently weigh the issue.

To hold that this aspect of the decision is utterly beyond judicial review is tempting; it is, however, unnecessary to decision of the case. So long as we bear in mind the nature of the decision, it is clear that no judicially ascertainable abuse of discretion exists.

II. Errors of Law

A. Preference for State Regulation

I have no quarrel with Part II.A(1) of the majority opinion insofar as it simply concludes that the Secretary may not delay promulgation of field sanitation standards for farmworkers because he thinks that state regulation is generally preferable to federal regulation. In the area of occupational health and safety, Congress obviously decided otherwise. But the Secretary’s reasoning was in fact far narrower. He merely responded in a practical way to special factors operating with regard to farmworkers, most notably Congress’s decision absolutely to forbid federal regulation of farms with fewer than 11 workers. 2 Confining to a footnote a discussion of the *638 verbal surgery by which the majority has travestied the Secretary’s reasoning, 3 I pass directly to the points the Secretary in fact made in comparing federal with state action in the context of field sanitation rules.

Congress’s ten-and-under restriction. The Secretary correctly identified a circumstance that complicates federal regulation of farms as opposed to other worksites: Congress’s determination that OSHA not regulate farms employing ten or fewer workers. See, e.g., 99 Stat. 1102 , 1106 (1985); 50 Fed.Reg. 42,660, 42,661 (Oct. 21, 1985); 50 Fed.Reg. 15,086, 15,088 (Apr. 16, 1985). The Secretary estimated that such farms employ approximately 64% of all hand laborers. 50 Fed.Reg. at 42,661. Believing that federal regulation of large farms would preempt state regulation of small farms, he concluded that federal promulgation of a standard would actually reduce total farmworker coverage (including those on both large and small farms). 50 Fed.Reg. at 15,092. In Part II.B, I explain why I believe he committed an error of law on this point. But quite apart from any such preemption, the congressional prohibition strongly colors the case. The vast majority of farmworkers work on small farms that only the states may regulate. Moreover, regulation of both large and small farms can be done on a unified, coordinated basis only if the states do it. 4 Thus, a deliberate congressional restriction of OSHA authority distinguishes farm-worker regulation from safety and health regulation of all other industries.

Release of federal resources. The Secretary also argued that reliance on state regulation, in an area where the states had already been extremely active, would free federal resources for use in combating other hazards. 50 Fed.Reg. at 42,661; 50 Fed. Reg. at 15,087-90. He found, and no one disputes the point, that 13 states, encompassing approximately 75% of all person years expended in agricultural production, had already adopted their own field sanitation standards. 50 Fed.Reg. at 42,661. This relatively energetic state activity severely limited the maximum possible increase in protection that a federal standard could supply. Indeed, in his April decision not to promulgate at all the Secretary estimated — and again the estimate is not dis *639 puted — that a federal standard could at best increase coverage of farmworkers by an additional 4% to 9%. 5 50 Fed.Reg. at 15,092.

As state activity and congressional constraints diminished the maximum possible gain that federal intervention could secure, the Secretary naturally compared that modest gain with the cost in enforcement resources (and thus in the health gains that deployment of those resources elsewhere might achieve). His April decision considered the issue (a consideration that he explicitly renewed in October, as explained below), and described at length some of the areas where possible regulation might save lives on a substantial scale: an asbestos standard that would avoid 8,500 cancer deaths over 45 years; an ethylene-oxide standard that was expected to reduce related deaths from a range of 532 to 1,017 to a range of 75 to 146; an inorganic arsenic standard expected to avert 11 lung cancer deaths per year in copper smelters alone; a benzene standard expected to save 822 deaths over a working lifetime. 50 Fed. Reg. at 15,088-89. He noted the limited number of available inspectors (1200 “person years” worth). Id. at 15,088. And he argued that inspection of isolated farms would consume inspector driving time disproportionate to the safety and health payoff, compared to inspector focus on hazardous industries typically located in highly industrialized areas. Id. Thus confronted with a choice between giving priority to lethal industrial hazards and generally nonlethal farm ones, 6 he elected the former.

The Secretary said all this in April. In October he noted that “OSHA has very limited enforcement resources which it has devoted primarily to protecting workers from life-threatening injuries and illnesses.” 50 Fed.Reg. at 42,661. He also observed that the policy reasons behind the April decision included “the severe limitations on OSHA’s resources, OSHA’s other priorities, and the appropriateness of state action to protect farmworkers.” Id. (emphasis added). Two sentences later he said, “While not rejecting the policy reasons set forth in the April 16 determination, the Secretary now finds that a different balance must be struck to give proper weight to the health risks posed.” Id. (emphasis added). Besides thus invoking the resource-allocation issue and his April treatment of it, the Secretary in October reargued in detail the closely related point that state activity had already greatly reduced the extent to which a federal standard could increase coverage. 7 Despite his continued concern over resource allocation, he concluded that the health risk tilted the balance in favor of a commitment to federal regulation contingent upon the states’ failing to take adequate action in the next 18 months.

The Secretary’s resource-allocation concern is not undercut by § 18(b) of the Act, 29 U.S.C. § 667 (b) (1982). Section 18(b) permits a state to displace federal enforcement on a specific regulatory issue by adopting an enforcement plan of its own. See infra n. 9. The Secretary could reasonably conclude that his threat device would be more effective in prompting the *640 states to take action and thereby free up federal resources than would promulgating a federal standard and waiting for the states to exercise their § 18(b) option.

The majority, seemingly conceding that the issue of “how best to allocate his agency’s resources” is for the Secretary, Maj.Op. at 623, denies that the October decision was based on resource allocation at all, Maj.Op. at 623-624 & n. 11. I confess myself wholly unable to grasp the contention. Apart from slighting his affirmative reliance on the concern, the majority seeks support in the Secretary’s commitment to promulgate a standard if the states do not act, saying that “The Secretary has already made [the resource-allocation] decision in favor of federal regulation of farmworkers’ sanitation needs, based on current conditions.” Maj.Op. at 623. But a commitment of resources contingent on state failure to act is altogether different from an absolute one. Had the Secretary made the latter, we would either have no case or be confronted with a complete about-face. Instead, the Secretary took the perfectly sensible decision to threaten the states with future regulation in the hope they would increase farmworker protection adequately and thus enable OSHA to use the released resources to protect workers elsewhere. Of course one can easily caricature the Secretary’s effort to balance concern for the farmworkers with concern for other workers by turning language addressed to the former (“unacceptable risks”) into an absolute that was clearly unintended. But such caricature is not the business of appellate courts.

High degree of local variation. Finally, the Secretary argued in favor of his threat device on the ground that states were better able to adopt standards responsive to “the vast differences in agricultural conditions.” 50 Fed.Reg. at 42,661. He specifically pointed to variations of “size, climate, terrain, workforce density and labor intensity” that dominate farm work and produce a diversity rarely if ever equaled in other occupations. Id. Because each state’s regulations would cover a relatively narrow range of conditions, the states regulating agricultural working conditions enjoy an unusual comparative advantage in providing protection. Under an undifferentiating federal standard, farms would chafe under a regulation designed to be all things to all people, and OSHA would have to expend resources evaluating the predictable deluge of variance requests. See 29 U.S.C. § 655 (d) (1982). Cf. 50 Fed.Reg. at 15,090.

In short, the Secretary in no way relied on a generalized preference for state regulation inconsistent with congressional intent. Moved by special factors — the most prominent of which had been created by Congress itself — he simply noted that the situation was one where a threat device might enable him to have his cake and eat it: state protection of farmworkers nearly equal to and possibly superior to federal, with a release of federal resources for protection of other workers.

B. The Secretary’s Preemption Theory

One of the Secretary’s reasons for attempting to encourage state action was his view that, by virtue of its preemptive effect, the promulgation of a federal field sanitation standard could well result in a decrease in the number of farmworkers protected by field sanitation regulations. 8 Section 18(a) of the OSH Act expressly permits state regulation of any “issue with respect to which no [federal] standard is in effect.” 9 29 U.S.C. § 667 (a) (1982). Evi *641 dently regarding field sanitation on large and small farms as a single “issue,” the Secretary concluded that the promulgation of a federal standard, though necessarily limited to farms with more than ten workers, would preempt state regulation even of farms with ten or fewer workers. That belief is spelled out unequivocally in his April statement, 50 Fed.Reg. at 15,092 (citing New Jersey State Chamber of Commerce v. Hughey, 600 F.Supp. 606 (D.N.J. 1985)); the October statement, though less clear, seems to draw upon the same idea, 50 Fed.Reg. at 42,661. If the supposition were true, federal relief for large-farm workers would torpedo state relief for small-farm workers.

Such a reading of § 18(a) seems unreasonable and therefore, notwithstanding the deference we owe the Secretary under Chevron U.S.A. Inc. v. National Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), subject to our correction. Congress declared that its purpose and policy were “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. § 651 (b) (1982). In adopting the ten-and-under restriction in appropriations riders, it clearly qualified that intent: safety and health for the small-farm worker were not to be a subject of direct federal regulation but were to come about through the operation of market forces, state regulation, or other factors. But it would make little sense for Congress with one hand to grant states the exclusive rights to regulate small farms and with the other to subject that grant to divestiture if OSHA promulgated a standard applying to large farms.

Section 18(a)’s preemption rule serves the useful function of protecting employers from conflicting standards and a double dose of enforcement agents. But a farm cannot, at the same time, employ both ten- or-fewer and eleven-or-more workers. Thus the conflict and duplication cannot occur — except in the sense that a farm’s shift in number of employees will on occasion push it from one side of the ten-and-under line to the other and thereby change its regulator. But the duplication and conflict implicit in such a scenario seem de minimis when compared to Congress’s unmistakable intent that “every working man and woman in the nation [be assured] safe and healthful working conditions,” 29 U.S.C. § 651 (b) (1982).

Accordingly, I would remand to the Secretary to reconsider his action in light of such an understanding of the law.

III. Reasonableness of the Decision to Delay

The Secretary was acutely aware of the health hazards that nonregulation would inflict on farmworkers — it was the acuteness of that perception that led him to modify his predecessor’s decision not to promulgate a standard at all. But it was his right (and perhaps his duty) also to consider the possible benefits of delay, including, as he saw it: solving the practical problems deriving from Congress’s ten-and-under restriction by using the threat of federal action to improve the lot of all farmworkers, releasing enforcement resources for use against hazards in other industries, and achieving a system of regulation better adapted to the wide variety of conditions on farms throughout the country. All aspects of the decision — the strong element of speculation involved in deciding the issue, the intangible character of the values at stake, and the necessary judicial ignorance of the severity of the *642 competing hazards on the Secretary’s agenda — counsel judicial deference.

Citing Congress’s expression of intent “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions,” 29 U.S.C. § 651 (b) (1982), the majority seeks to derive judicially manageable restrictions on the Secretary’s authority. See Maj.Op. at 630-32. Specifically, it finds that he lacks any discretion to withhold the immediate promulgation of a federal standard unless the states were “predispos[ed]” to adopt standards reaching “close to” 100% of all workers on large farms. See id.

But this rule of thumb does not readily flow from the language of the OSH Act. Indeed, Congress also expressed its intent that this goal be implemented “by developing innovative ... approaches for dealing with occupational safety and health problems,” 29 U.S.C. § 651 (b)(5) (1982), and by “encouraging the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws ...,” id. § 651(b)(ll). The Secretary interprets these expressions of intent as permitting him to withhold immediate promulgation of a field sanitation standard to secure the benefits already discussed. I do not find this interpretation outside the realm of reason.

The majority’s generation of mechanical standards depends on a supple use of the legislative preamble's reference to assuring “so far as possible every working man and woman in the Nation safe and healthful working conditions,” 29 U.S.C. § 651 (b) (1982). It invokes the language as a basis for requiring a sort of universalism, yet it introduces qualifiers not mentioned by Congress in order to deny the Secretary’s discretion to consider the welfare of small-farm workers. Compare the language of § 651(b) with “the clear standard of uniform nationwide regulation for all workers within OSHA’s jurisdiction,” Maj.Op. at 631 (emphasis added). In effect the majority reads the restrictive appropriations riders as manifesting unqualified congressional indifference to the welfare of two-thirds of the nation’s farmworkers.

There is no need to impute to Congress such a mean-spirited view. The Secretary’s position, that he may consider their welfare so long as he does not directly regulate, seems fully compatible with the most likely explanation of the riders: that Congress regarded it as unsuitable for Washington officials to decree small-farm working conditions throughout the country. Yet, despite the teaching of Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), the majority rejects the Secretary’s interpretation without even canvassing possible congressional purposes, much less assessing their plausibility.

Having set mechanical standards for appraising the minimum acceptable state response, the majority relies on the states’ earlier inaction, buttressed by hindsight, to conclude that the Secretary could not reasonably have expected adequate favorable action to occur. Maj.Op. at 631-632. Surely the issue of how a state is likely to respond to a novel experiment of this sort is not the type of judgment the courts are well equipped to make. Moreover, the history of limited state action prior to the Secretary’s employment of his threat device is hardly relevant to a prediction of how they will respond to that device. And while hindsight indeed reveals that 12 states have told the Secretary they will not adopt standards. Maj.Op. at 633, these states only account for 9% of all farmworkers, Respondents’ Letter to this Court (Nov. 13, 1986). Hindsight also shows that six states have since adopted standards, with others actively engaged in rulemaking as of November 13, 1986. Id.

Here the Secretary committed himself to promulgation of a federal regulation if state activity during the period of delay fell short of his standard. I would find the decision to withhold immediate promulgation arbitrary and capricious only if the Secretary had no reason to expect state action of any significance to occur. The *643 record provides no basis for such a conclusion.

The benefits that the Secretary sought to achieve by his threat device were ones he was entitled to consider and were on their face substantial. Their intelligent comparison with the benefits of immediate action required the expertise of the Secretary. The majority today impermissibly substitutes its judgment for his.

Even if the Secretary’s delay were an abuse of discretion, the remedy would surely be to remand to the Secretary with an order to accelerate the proceedings. Instead, the court orders him to promulgate immediately a set of regulations that he viewed as only contingently suitable. Thus the court commits the Secretary’s enforcement resources to the nation’s farms, at the expense of enforcement against lethal hazards elsewhere, without so much as allowing him an opportunity to review the situation under the majority’s view of the law. That is not the role of a reviewing court. SEC v. Chenery Corp., 318 U.S. 80, 94-95 , 63 S.Ct. 454, 462 , 87 L.Ed. 626 (1943).

IV. The Settlement Agreement

Petitioners contend, and the separate concurrence agrees, that the settlement agreement entered into by the parties during an earlier phase of this litigation compels us to order the Secretary to immediately promulgate a field sanitation standard. The record does not support this contention.

In 1973 petitioners filed an action challenging the Secretary’s delay in promulgating a field sanitation standard. In 1982, after nine years of litigation, including two appeals to this court, the parties tired of thrashing about in this legal quagmire and entered into a settlement agreement. The agreement compelled the Secretary to (1) “make a good faith effort to undertake and to complete the development of a field sanitation standard,” Joint Appendix (“J.A.”) at 12, and (2) to publish, within a prescribed time period, either a field sanitation standard or a final determination not to issue such a standard, id. at 12-14. In return, the agreement committed petitioners to dismiss the proceedings once the Secretary performed his end of the bargain. Id. at 12.

On April 16, 1985, within the time period of the settlement agreement (as extended by court order), the Secretary published his “final” decision not to promulgate a field sanitation standard. 50 Fed.Reg. 15,086. Petitioners then challenged the Secretary’s decision as violating the settlement agreement and contested the Secretary’s decision on the merits. The Secretary moved for dismissal of both actions.

While these motions were pending, a new Secretary took office, causing petitioners to request reconsideration of the April 16 decision and immediate promulgation of a field sanitation standard. J.A. at 41-48. The Secretary agreed to reconsider the matter, and on October 21, 1985 vacated the April 16 decision and committed himself to promulgating a federal standard if the states failed to regulate adequately within two years. 50 Fed.Reg. 42,660. Petitioners now assert that the October 21 decision violates the settlement agreement. I disagree.

The settlement agreement required the Secretary to come to a final resolution of the field sanitation issue within a specified time. J.A. at 12-14. If the Secretary believed he could not meet this deadline, he was required to file an affidavit with the District Court and petitioners explaining why he thought the timetable could not be met, and, if petitioners objected, to demonstrate that the proposed deferral was in good faith. Id. at 13-14.

When petitioners asked the Secretary to reconsider the April decision, they brought about a situation not contemplated by the original agreement. While of course the request in itself did not deprive them of their right to challenge the Secretary’s negative decision on substantive grounds, it clearly ran the risk that he would act in a manner that mooted that case, as, for example, by promulgating a standard that *644 provided less protection than the pending draft. At a minimum, it would seem that their request had the effect of waiving the right to insist on technical compliance with the settlement (ie., the Secretary’s filing with the District Court for additional time). This left them with, at most, an entitlement to review of the Secretary’s action for good faith.

In large part the good faith issue is resolved by consideration of the problem before him, discussed above. With reference to the special problem of delay under the settlement agreement, I find it hard to see how the Secretary’s partial responsiveness to petitioners’ own demands in any way manifested a lack of good faith.

In any event, the settlement agreement related solely to the matter of delay. No violation of it by the Secretary could justify ordering him to promulgate the draft as a final regulation, denying him any chance to consider the scope of intervening state activity or the overall merits of issuing such a rule.

. The salient distinction between the two is, as noted infra this page, that here the Secretary has already invested most of the resources necessary to assess the problem and to identify suitable remedial rules.

. Annual riders attached to bills appropriating funds to OSHA prevent the Secretary from spending any money to "prescribe, issue, administer, or enforce any standard, rule, regulation, or order” applicable to farms not maintaining temporary labor camps and employing ten or fewer workers. E.g., 99 Stat. 1102 , 1106 (1985).

. For example, as evidence of the Secretary's purported motivation to reshape the state-federal relationship to his personal liking, the majority reproduces, Maj.Op. at 624, a sentence of the Secretary stripped of its critical, qualifying words. The full sentence, ellipses replaced with the Secretary’s actual language (emphasized), reads as follows: However, the Secretary continues to believe that state action responsive to this need would be preferable to, and more effective than federal action.” 50 Fed.Reg. 42,660, 42,660 (Oct. 21, 1985) (emphasis added to reflect omissions in majority opinion). Another orphaned clause appearing on the same page of the majority opinion is the following (with the omitted language restored and emphasized): "‘Federalism’ involves a concept designed to restore an appropriate balance of responsibility between state & federal government and is appropriately applied in those instances where states are already taking charge of their police power responsibilities.” 50 Fed.Reg. 15,086, 15,090 (Apr. 16, 1985) (emphasis added to reflect omissions in majority opinion). (The passage goes on to note that because of congressional limitations on OSHA’s authority states can reach many more workers, that states can adopt regulations better suited to the wide variety of conditions found on farms throughout the country, and that OSHA’s resources are better employed on other issues more appropriately handled by an undifferentiating federal standard. Id.) Basically, the Secretary argued in favor of state regulation because the factors involved in this particular case are such that state regulation would lead to the most comprehensive and effective protection for all of the Nation’s workers, including all of its farmworkers, irrespective of the type of farm they work on. E.g., 50 Fed.Reg. 42,660 (Oct. 21, 1985); 50 Fed.Reg. 15,086 (Apr. 16, 1985); see infra pp. 638-640. That the Secretary relied on his desire to provide the best possible coverage to all workers, and not a general preference for state regulation, is evidenced by his commitment to promulgate a federal standard if the states do not take adequate action, 50 Fed.Reg. at 42,660, and his statements that deference to the states is appropriate only where states are acting to protect their workers, 50 Fed.Reg. at 15,090.

. The majority bafflingly finds that Congress’s under-11 prohibition prevents the Secretary from considering the welfare of workers on such farms. Maj.Op. at 629. Part III, infra, develops the majority’s error in inferring such congressional indifference to the welfare of two-thirds of the nation's farm workers.

. This argument of course goes only to the number of workers covered by a standard and not the relative stringency of state and federal standards. The record indicates that some state standards are more stringent than the proposed federal standard and some less. See 50 Fed. Reg. at 15,086, 15,091.

. The Secretary did note that "[t]he field sanitation standard would deal with one major health effect, heatstroke,” 50 Fed.Reg. at 15,089, but he implicitly found heatstroke to pose a relatively low risk of death when compared to other major health hazards. Although the Secretary provides no concrete figures buttressing this latter finding, cf. 49 Fed.Reg. 7,589, 7,593 (1984), the general proposition appears beyond dispute. See Brief for Petitioners at 23 (“The record reflects at least two reported cases of farmworkers dying in 1984 from heatstrokes.”).

. I am unable to discern the principle applied by the majority in deciding the relevance of the April statement. Despite the Secretary’s deliberate cross-references, his April resource-alloca-_ tion discussion doesn’t count. Maj.Op. at 623-624 n. 11. But an April half-sentence on federalism, regarded by the majority as revelatory of legal error. Maj.Op. at 624, does.

. The Secretary also notes that preemption would deprive farmworkers of the stricter standards currently in effect in certain states. 50 Fed.Reg. at 42,661. While this is true insofar as such standards apply to large farms, the Secretary justifiably does not accord this potential loss much weight. Id.; 50 Fed.Reg. at 15,092. If these states, which appear to be few in number, see 50 Fed.Reg. at 15,086, 15,091, desire to keep their stricter standards, § 18(b) of the Act provides a mechanism for them to do so. See infra n. 9.

. Section 18(b) of the OSH Act, 29 U.S.C. § 667 (b) (1982), permits state regulation of issues for which federal standards are in effect if the state gets its plan certified by OSHA as meeting the standards set out in 29 U.S.C. § 667 (c). Certain states, including three having field sanitation standards (California, Oregon, *641 and North Carolina), appear to have acted under this provision to supplant federal regulation with respect to all health and safety issues. See United Airlines v. Occupational Safety and Health Appeals Board, 32 Cal.3d 762, 772 , 654 P.2d 157, 163-64 , 187 Cal.Rptr. 387, 393-94 (1982) (en banc); N.C.Gen.Stat. § 95-126(b)(2)(c) (1985). The field sanitation standards promulgated by such states would survive the adoption of a federal standard, so long as the state standards meet the criteria of 29 U.S.C. § 667 (c) (1982). States currently regulating field sanitation, but lacking health and safety acts entirely supplanting federal regulation on all health and safety issues, could maintain their field sanitation standards after the issuance of a federal standard by taking the appropriate steps under 29 U.S.C. § 667 (b)-(h) (1982).