The opinion of the court was delivered by: HOGAN
THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE
In Civil Action No. 87-1487, plaintiffs brought suit principally under the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986) (adding section 210 of to the Immigration and Nationality Act, 8 U.S.C. § 1160) ("IRCA" or the "Act") alleging that the Secretary of Agriculture (the "Secretary") promulgated definitional regulations that are beyond the scope of the Secretary's statutory authority. The Court permitted intervenors to enter the action. Intervenors allege that the Secretary promulgated definitional regulations that are so narrowly drawn as to be arbitrary and capricious. Presently before the Court are the parties' cross-motions for summary judgment in Civil Action No. 87-1487. For the reasons stated in this opinion, the Court shall deny plaintiffs' motion and grant intervenors' motion in part.
The IRCA created the Seasonal Agricultural Worker ("SAW") program which extends lawful immigrant status to aliens who qualify for the SAW program. An individual must apply in the 18 month period beginning June 1, 1987 and demonstrate that he is otherwise admissible into the United States as an immigrant. 8 U.S.C. § 1160(a). Furthermore, the applicant must show that he resided in the United States and performed seasonal agricultural services ("SA services") for at least 90 days between May 1, 1985 and May 1, 1986. Id. SA services constitute "the performance of field work related to planting, cultural practices, cultivating, growing and harvesting of fruits and vegetables of every kind and other perishable commodities, as defined in regulations by the Secretary of Agriculture." 8 U.S.C. § 1160(h). Achievement of SAW status confers the status of an alien lawfully admitted for temporary residence. 8 U.S.C. § 1160(a). Thereafter, the individual may seek and receive the status of an alien lawfully admitted for permanent residence. Id.1
Critical and unpredictable labor demands - "the period during which field work is to be initiated cannot be predicted with any certainty 60 days in advance of need." 52 Fed. Reg. at 20376.
Agricultural lands - "any land, cave or structure, except packinghouses or canneries, used for the purpose of performing field work." Id.
Field work - "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 'on the field' loading of transportation vehicles are included. Operations using a machine, such as a picker or a tractor, to perform these activities on agricultural land are included. Supervising any of these activities shall be considered performing the activities." Id.
Fruits - "the human edible parts of plants which consist of the mature ovaries and fused other parts or structures, which develop from flowers or inflorescence." Id.
Other perishable commodities - "those commodities which do not meet the definition of fruits or 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 donax), 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 aquacultural products, birds, cotton, dairy products, earthworms, fish including oysters and shellfish, forest products, fur bearing animals and rabbits, hay and other forage, and silage, honey, horses and other equines, livestock of all kinds including animal specialties, poultry and poultry products, sod, sugar cane, wildlife, and wool." Id.
Vegetables - "the human edible leaves, stems, roots, or tubers of herbaceous plants." Id.
Plaintiffs, who represent American forestry interests and individual American tobacco workers, brought suit alleging that the Secretary promulgated overly broad regulations.
Plaintiffs claim that the definitions of components of SA services expand the scope of the IRCA beyond what Congress intended the SAW program to cover. Specifically, plaintiffs contest the Secretary's definition of "other perishable commodities" maintaining that "perishability" means that the crop will spoil on the plant if not picked immediately and that the crop is traditionally associated with labor-intensive field work. Moreover, plaintiffs dispute the Secretary's definitions of fruits and vegetables. In particular, plaintiffs contend that perishability was meant to apply to all plant crops, e.g., fruits, vegetables, and other commodities. As such, plaintiffs maintain that the Secretary, by defining fruits, vegetables, and other perishable commodities in the terms set forth above, included in the SAW program crops that Congress never intended be incorporated in the program. Finally, plaintiffs contend that Congress intended "field work" to be limited to traditional cultivating and harvesting activities not drying, canning, and other means of processing.
Intervenors, who represent alien sugar cane workers, contend that the Secretary's regulations are too restrictive.
Initially, intervenors contend that the Secretary's definition of vegetables is arbitrary and capricious. Alternatively, intervenors argue that sugar cane falls within the Secretary's definition of vegetables and should be included in the SAW program. Furthermore, intervenors maintain that by defining "other perishable commodities" in terms of "critical and unpredictable labor demands" the Secretary acted arbitrarily and capriciously. Alternatively, even if the definition is lawful, intervenors contend that sugar cane falls within "other perishable commodities" as defined and that the Secretary arbitrarily and capriciously excluded it.
The United States Supreme Court has provided guidance on the manner in which a court determines whether an agency's regulations are consistent with statutory mandate. See Chevron, U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). First, a court determines whether Congress has spoken directly on the issue. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. If, however, the court determines that Congress has not directly spoken of the question at issue "the court does not simply impose its own construction on the statute . . . rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843; see Mead Johnson Pharmaceutical Group v. Bowen, 838 F.2d 1332, at 1335 (D.C. Cir. 1988) (court questions whether the agency's construction of the statute is rational and consistent with the statute). "It is principally where Congressional intent is not clear from the statutory text and the legislative history that a reviewing court gives substantial deference to 'reasonable' agency constructions." Catholic Social Services, Inc. v. Meese, 664 F. Supp. 1378, 1383 (E.D. Cal. 1987) (interpreting § 1160(d) of the IRCA) (citing I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 1220 n. 29, 94 L. Ed. 2d 434 (1987)). In determining whether the agency's interpretation is reasonable, the Court must confine its inquiry to statements and materials before the agency in the course of its rulemaking. AFL-CIO v. Brock, 266 U.S. App. D.C. 335, 835 F.2d 912, 918 (D.C. Cir. 1987) (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 50, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983)).
Both plaintiffs and intervenors take issue with the Secretary's definition of other perishable commodities in terms of critical and unpredictable labor demands. Intervenors claim the criterion puts a restrictive gloss on what Congress intended other perishable commodities to mean. Plaintiffs contend that the criterion unlawfully expands those crops which Congress intended be included within the scope of other perishable commodities. The Secretary maintains that the definition of perishable commodities in terms of critical and unpredictable labor demands is reasonable and comports with the legislative history of the IRCA.
The agency's notice of the proposed rulemaking and notice of the final rules shed some light on the rationale for defining other perishable commodities in terms of critical and unpredictable labor demands. The notice of proposed rulemaking explained that the critical and unpredictable labor demands criterion addresses the instances in which ...