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February 27, 1990


Gerhardt Gesell, United States District Judge.

The opinion of the court was delivered by: GESELL


 This case is before the Court on defendants' motion to dismiss or alternatively for summary judgment, which plaintiffs have opposed. The motion has been fully briefed and argued.

 Plaintiffs are CATA, a farmworker group, and two farmworkers. They filed this action against the Secretary of Labor complaining that the Department published a new definition of "prevailing practice" which alters to their disadvantage the "H-2A" nonimmigrant visa program for temporary foreign farmworkers. They seek a permanent injunction striking the definition, which they claim was issued in violation of the Administrative Procedures Act.

 "H-2A" visas permit an employer of farm labor to hire foreign farmworkers. The Immigration and Nationality Act ("INA"), as amended by the Immigration Reform and Control Act of 1986 ("IRCA"), provides that the Attorney General may not grant an employer H-2A visas unless the Secretary of Labor certifies that there are not sufficient U.S. workers for the jobs and that the hiring of foreign workers will not adversely affect wages and working conditions of similarly employed U.S. workers. 8 U.S.C. § 1188(a).

 An employer seeking certification to hire H-2A workers must meet certain labor standards. Some of these standards are fixed by regulation, see 20 CFR Part 653, Subpart F, and are mandatory nationwide for employers wishing to participate in the H-2A program. Other standards are imposed only when they are deemed in the employer's region to be "normal" or "common," which the Department defines as "less than prevailing, but . . . clearly . . . not unusual or rare." H-2A Program Handbook at II-7 (1988). See, e.g., 20 CFR § 655.102(b)(3). A third category of standards, the category at issue here, is described as "prevailing practices." Pursuant to regulations, an employer seeking H-2A visas must adhere to the prevailing practices in his region as to family housing, transportation advances, frequency of payment, and utilization of farm labor contractors. See 20 CFR §§ 655.102(b)(1)(vi), 655.102(b)(5), 655.102(b)(10), 655.103(f).

 The disputed definition was included in the H-2A Program Handbook released in June 1988. The Department published the handbook "as an informational notice" in the Federal Register without inviting public comment prior to adoption. 53 Fed.Reg. 22076 (June 13, 1988).

 The H-2A handbook defines a "prevailing practice" as a practice that is observed by a majority of employers of U.S. workers in an occupation in an area and "this majority of employers . . . also employs a majority of U.S. workers in the occupation in the area." Handbook at II-6, 53 Fed.Reg. 22095.

 The complaint asserts 1) that the handbook definition is a new substantive rule, adopted without required APA notice and comment procedures; and 2) that the definition is arbitrary and capricious in that it is contrary to the plain meaning of "prevailing" presumably applicable and was adopted without a reasoned explanation. Plaintiffs claim the definition will harm U.S. workers and violates the immigration laws and regulations.

 Plaintiffs do not take a position as to the specific definition they would consider most appropriate but suggest that either a definition requiring a majority of employers or one requiring a majority of employees would meet the common meaning of "prevailing," whereas the handbook's "double majority" requirement does not.

 Defendants' motion is addressed to standing and ripeness arguments as well as to the merits. Plaintiffs take the position that additional discovery is required and have not cross-moved for summary judgment at this stage.

 Case or controversy

 Plaintiffs seek to encourage higher standards for domestic farmworkers and feel the "double majority" rule will be harmful because under it prevailing practices will be more difficult to establish. It is necessarily true that a "double majority" requirement will not produce more "prevailing practices" than either a "majority of employers" or "majority of employees" test alone. The "double majority" is thus likely to produce fewer "prevailing practices," resulting in less protection for U.S. farmworkers. Defendants argue, however, that plaintiffs have no standing and the case is not ripe for review because plaintiffs have not alleged specific incidents wherein the new definition caused them direct harm.

 Plaintiffs attempt to point to two examples of concrete harm. One is that in 1985 the Department's Philadelphia regional administrator proposed to find a prevailing practice but his proposal was rejected by an official asserting the disputed definition. A second example occurred in July 1988, when the disputed definition allegedly precluded the finding of another prevailing practice, thus preventing family housing for workers from becoming a required element of H-2A work contracts for ...

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