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June 11, 1990

CLAYTON K. YEUTTER, Secretary of Agriculture, RICHARD L. THORNBURGH, Attorney General of the United States Department of Justice, ALAN C. NELSON, Commissioner, Immigration and Naturalization Service and JAMES A. BAKER, Secretary of State

The opinion of the court was delivered by: ROSZKOWSKI


 This action comes before the Court on the parties' cross-motions for summary judgment. For the reasons set forth in the opinion below, this Court grants plaintiffs' motion for summary judgment and orders the commodity sod to be included in the definition of "other perishable commodities" as set forth by the United States Department of Agriculture in their Special Agricultural Workers regulations. Further, this Court denies defendants' motion for summary judgment.


 The cross-motions for summary judgment which are currently pending represent the third time this Court (including Magistrate P. Michael Mahoney) has dealt with the appropriateness of including or excluding sod as an "other perishable commodity" in the Special Agricultural Workers (hereinafter "SAW") program of the Immigration Reform and Control Act, 8 U.S.C. § 1160 (hereinafter "IRCA"). In September, 1988, the Magistrate issued a Report and Recommendation finding that the United States Department of Agriculture (hereinafter "USDA") arbitrarily and capriciously excluded sod in the USDA's original final regulation defining "other perishable commodities." In addition, the Magistrate found that the USDA violated § 533 of the Administrative Procedure Act (hereinafter "APA") with an inadequate statement of basis and purpose. This Court, after further briefing, essentially adopted the Magistrate's Report and Recommendation in a Memorandum Opinion and Order memorialized in Morales v. Lyng, 702 F. Supp. 161 (N.D. Ill. 1988).

 As part of this Court's order, the issue of sod's inclusion or exclusion in the SAW program and the definition of "other perishable commodities" was remanded to the USDA for further informal rulemaking. As a result of this Court's order, the USDA promulgated a proposed rule, invited and received public comment and ultimately fashioned a final regulation regarding the inclusion of sod in the SAW program. This process, on remand, resulted once again in sod being excluded from the definition of "other perishable commodities" and hence, the SAW program. The plaintiffs, a collection of sod workers, growers and grower associations, once again move this Court to set aside the USDA's regulations as arbitrary and capricious. The defendants counter with their own motion for summary judgment, requesting affirmance of the actions of the USDA and Secretary of Agriculture Yeutter (hereinafter "Secretary").


 By way of factual background, the Court refers to the following discussion in the Magistrate's Report and Recommendation:

The case arises from IRCA and a recent amendment to IRCA -- the SAW program. One purpose of IRCA was to reduce the flow of illegal aliens into the country. IRCA attempted to accomplish this objective by penalizing employers who hired undocumented aliens. Of course, Congress realized that certain segments of the economy -- agricultural ventures in particular, relied on illegal aliens to meet their labor needs. Indeed, even before the enactment of IRCA, the Immigration and Naturalization Act incorporated what is known as the "H-2" program. This program provided for employment of temporary alien workers by employers certified by the Secretary of Agriculture.
[Under the "H-2" program,] the employer would apply for certification with the Secretary by alleging that there were insufficient domestic workers willing to perform a certain task and that alien labor would not affect the wages and conditions of workers in the United States similarly employed. Still, certain segments of the agricultural industry needed more help. As a result, Congress enacted the "H-2A" as part of IRCA. The "H-2A" program merely reduced the relevant time requirements of the "H-2" program. Presently, the government can not require an employer to apply for certified labor more than 60 days in advance of his needs. Again, Congress determined that the needs of certain agricultural interests particularly western growers of perishable commodities who have come to rely heavily on the existence of an undocumented work force were not being met by the "H-2A" program. Thus Congress amended IRCA to include the SAW program. Under the SAW program, certain illegal aliens who qualify to be "Special Agricultural Workers" may attain temporary and eventually permanent residence status. 8 U.S.C. § 1160(a).

 Morales v. Lyng, No. 87 C 20522, Magistrate's Report and Recommendation, slip op. at 3-4 (N.D. Ill. September 2, 1988).

 In order to qualify as a SAW, the statute provides the following prerequisites:

The alien must establish that he has --
(i) resided in the United States, and
(ii) performed seasonal agricultural services in the United States for at least 90 man-days.[sic]
during the 12-month period ending on May 1, 1986. For purposes of the previous sentence, performance of seasonal agricultural services in the United States for more than one employer on any one day shall be counted as performance of services for only 1 man-day.

 8 U.S.C. §§ 1160(a)(1)(A) and 1160(a)(1)(B).

 A. Definitions

 1. "Seasonal"

 "Seasonal" is defined by the USDA as follows:

"Seasonal" means the employment pertains to or is of the kind performed exclusively at certain seasons or periods of the year. A worker who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though he or she may continue to be employed during the year.

 7 C.F.R. 1d.8.

 2. "Seasonal Agricultural Services"

 "Seasonal agricultural services" are defined by IRCA as "the performance of field work related to planting, cultural practices, cultivation, growing and harvesting of fruits and vegetables of every kind and other perishable commodities, as defined in regulations by the Secretary of Agriculture." 7 C.F.R. § 1d.9. The term "seasonal agricultural services" is important to the Secretary's determination of whether sod should be included in the SAW program because eligibility for the program is predicated on the individual worker's ability to show that he "performed seasonal agricultural services in the United States for at least 90 man-days . . . during the 12-month period ending on May 1, 1986."

 The foregoing definition of seasonal agricultural services, which determines the eligibility for the SAW program of particular workers and types of agricultural work, contemplates definitions of the terms "field work" and "other perishable commodities."

 3. "Field Work"

 The USDA has defined "field work" to mean:

Any employment performed on agricultural lands for the purpose of planting, cultural practices, cultivating, growing, harvesting, drying, processing, or packing any fruits, vegetables, or other perishable commodities. These activities have to be performed on agricultural land in order to produce fruits, vegetables, and other perishable commodities, as opposed to those activities that occur in a processing plant or packinghouse not on agricultural lands. Thus, the drying, processing, or packing of fruits, vegetables, and other perishable commodities in the field and the "on the field" loading of transportation vehicles are included. Operations using a machine, such as a picker or tractor, to perform these activities on agricultural land are included. Supervising any of these activities shall be considered performing the activities.

 7 C.F.R. 1d.4 (emphasis added).

 4. "Other Perishable Commodities"

 The Secretary defines "other perishable commodities" as follows:

"Other perishable commodities" means those commodities which do not meet the definition of fruits and vegetables, that are produced as a result of seasonal field work, and have critical and unpredictable labor demands. This is limited to Christmas trees, cut flowers, herbs, hops, horticultural specialties, spanish reeds (arundo donox), spices, sugar beets, and tobacco. This is an exclusive list and anything not listed is excluded. Examples of commodities that are not included as perishable commodities are animal aqua cultural products, birds, cotton, dairy products, earthworms, fish including oysters and shellfish, forest products, furbearing animals and rabbits, hay and ...

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