National Ass'n of Farmworkers Organizations v. Marshall
| Decision Date | 20 March 1980 |
| Docket Number | No. 79-1587,79-1587 |
| Citation | 628 F.2d 604 |
| Parties | 24 Wage & Hour Cas. (BN 564, 202 U.S.App.D.C. 317, 88 Lab.Cas. P 33,892, 1980 O.S.H.D. (CCH) P 24,309 NATIONAL ASSOCIATION OF FARMWORKERS ORGANIZATIONS, et al., Appellants, v. Ray MARSHALL, Secretary, Department of Labor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia. (D.C. Civil Action No. 79-1044).
Diane B. Cohn, Washington, D. C., with whom William B. Schultz and Robert B. Stulberg, were on brief, for plaintiffs-appellants.
Ronald G. Whiting, of the Bar of the Supreme Court of Iowa, Washington, D. C., pro hac vice by special leave of court was allowed to argue for appellee.
Alvin Bramow, Deputy Associate Sol., Washington, D. C., was on brief, for Secretary of Labor.
Before WRIGHT, Chief Judge, BAZELON, Senior Circuit Judge, and WILKEY, Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
This case presents a question familiar to this court 1: How can an administrator set safety standards in the absence of adequate scientific evidence? The question here arises in the context of action by the Secretary of Labor (the Secretary) to implement section 13(c)(4)(A) of the Fair Labor Standards Act Amendments of 1977 (the 1977 Amendments). This provision permits the Secretary to waive restrictions on employment of 10 and 11 year olds in short season agricultural harvesting, but only if eight enumerated conditions are fulfilled as demonstrated by "objective data." 29 U.S.C.A. § 213(c)(4) (A) (1979).
One such condition, hereinafter described as "the pesticide condition," requires objective data that children will not be adversely affected by pesticides and chemicals used on crops. 2 Without notice or comment, the Secretary promulgated a list of pesticides that would satisfy the statutory pesticide condition. The Secretary had no studies or data concerning the effect of any pesticide exposure on children. Because this statutory scheme so clearly requires objective proof of safety, we find the challenged regulations listing approved pesticides inconsistent with governing law. We also find the challenged regulations procedurally flawed as they were promulgated without the notice and comment procedures required under the Administrative Procedure Act (APA), 5 U.S.C. § 553. We therefore reverse the district court's denial of a motion for preliminary injunction, and remand for proceedings not inconsistent with this opinion. 3
As a general rule, Federal law prohibits employment of children under 12 years of age. 4 The 1977 Amendments permit employers (ii) the employment of the individuals to whom the waiver would apply would not be deleterious to their health or well-being;
to apply to the Secretary for a waiver of the child labor laws in order to employ 10 and 11 year olds for harvesting short-season crops. Such waivers can be granted under the Amendments only if the following conditions, 5 among others, are met:
(iii) the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being of the individuals to whom the waiver would apply.
29 U.S.C.A. § 213(c)(4)(A) (1979). These requirements are satisfied only if the Secretary makes findings "based on objective data submitted by the applicant." Id.
The history of the regulations at issue reveals an agency struggling to establish uniform standards in the face of little or no evidence. Initially, the Department of Labor attempted to set uniform evidentiary benchmarks to establish the requisite safety assurances for work with pesticide-treated crops. Thus, on April 4, 1978, the Department proposed that waivers permitting employment of 10 and 11 year olds would be granted only if employers produced evidence that their pesticides meet health and safety standards of the Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA), National Institute for Occupational Safety and Health (NIOSH), or other "comparable authority." 43 Fed.Reg. 14070 (April 4, 1978). This first agency action was the only one announced with advance notice and opportunity for public comment. The agency solicited responses in a two-day public hearing.
Comments and testimony on the April 4 proposal pointed to the complete absence of relevant health and safety standards for children exposed to pesticides. 6 The EPA Assistant Administrator for Toxic Substances, a member of EPA's Scientific Advisory Panel for Pesticides, and one of the instant plaintiffs alerted the Department of Labor to the fact that neither the agencies cited in the regulation nor any comparable authority had set standards that would protect children from the adverse effects of pesticide exposure. The public and governmental response demonstrated that the The final regulation was published in the Federal Register on June 21, 1978. The preamble acknowledged that the EPA's pesticide exposure standards 8 "have not been shown to be safe for 10 and 11 year olds." 43 Fed.Reg. 26563 (June 21, 1978) (codified at 29 C.F.R. § 575.5 (1979)). Section 575.5(d) of the regulation provided that employers seeking a waiver to permit employment of 10 and 11 year olds would have to submit either (1) a statement that they do not use pesticides, or (2) data proving that 10 and 11 year olds can safely be exposed to the particular pesticides used. The regulation also indicated that it would remain subject to future modification in light of studies conducted by the Secretary or his designees.
state of knowledge was simply too inadequate to support safety standards. 7
After promulgation of the regulations a Federal district court in the State of Washington temporarily enjoined enforcement of the general statutory minimum age restrictions 9 because the Secretary had failed to act on pending waiver applications before the June 1979 strawberry season. See Washington State Farm Bureau v. Marshall, No. C78-135T (W.D.Wash.1978). Although that suit ultimately was dismissed, some 3900 children under the age of 11 were employed during that strawberry harvest as a result of that court's action. Plaintiff's Br. at 13 n. 2 .
At this point the Department apparently felt pressed to facilitate the processing of waiver applications by specifying safety standards. On June 15, 1978, the Secretary asked a private consulting firm, Clement Associates, Inc., to review existing scientific literature in an effort to develop criteria for evaluating waiver applications. Clement was directed to focus specifically on strawberry hand-harvesting in Washington and Oregon, and potato hand-harvesting in Maine. What followed was a series of Clement reports, triggering a series of agency modifications of its regulations, each published in the Federal Register without advance notice or opportunity for The first Clement study recommended "tentative" standards that essentially doubled the "preharvest intervals" set by the EPA for adults. 14 The Department adopted this recommendation in an August 18, 1978 amendment of section 575.5(d) of its regulation. 15 The Department approved 22 pesticides for use with "preharvest intervals" before children could enter the field. The list included one known carcinogen and other chemicals found dangerous by Clement. 16 Although the Secretary did not provide advance notice or opportunity for comment before putting the regulations into effect, the EPA submitted comments challenging the adequacy of the standards. The EPA noted the special susceptibility of children to toxic effects from pesticides, and concluded "we don't believe the data available allows us to make a decision on the safety of children either in preharvest or reentry situations." 17
comment. 10 Each of the Clement studies proposed the use of "preharvest intervals" or "minimum entry times" which provide for a time lag between the spraying of the pesticides and the entrance of harvesters on the fields. 11 Each of the studies qualified its recommendations by observing they could "not assure safety" to the 10 and 11 year olds 12 and consistently acknowledged the need for more exhaustive study including new studies, not merely reviews of existing literature. 13 Nonetheless, the Secretary
relied exclusively on these studies in his regulations implementing the waiver provision
The next Clement report was requested on March 19, 1979 some six months after the earlier report. Rather than seeking new field studies to address the special question of pre-adolescent health, the Department asked Clement to review the list of approved pesticides and to investigate additional pesticides. Ten days later, Clement issued a report addressing the carcinogencity of five pesticides. Shortly thereafter, the Department issued another rule removing three known carcinogens from the list of approved pesticides. 18 This action was not based on new data, as the three chemicals had already been identified as carcinogens before the adoption of the August 18 rule. 19
Clement then issued another report discussing 16 other pesticides it researched at the request of the Department. 20 Although noting the dangerous health effects associated
with some of these substances, Clement again merely recommended doubling EPA's preharvest intervals as a standard for children. The agency responded by adding these 16 substances to the approved list with minimum entry times established in the Clement report. 21
Plaintiffs-appellants, two private non-profit organizations representing farmworker families, 22 sought: 1) a finding by the district court that the Secretary's approval of pesticide use with pre-harvest intervals for 10 and 11 year olds violates the...
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