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December 28, 1990

VICTOR GARCIA, et al., Plaintiffs,
HON. CLAYTON K. YEUTTER, et al., Defendants

George H. Revercomb, United States District Judge.

The opinion of the court was delivered by: REVERCOMB



 The plaintiffs, two United States citizens and a permanent resident of the United States who work as farm laborers in the United States and the AFL/CIO, have brought this action for declaratory and injunctive relief against various actions taken by the defendants in implementing the Replenishment Agricultural Worker ("RAW") program created by the Immigration Reform and Control Act of 1986 ("IRCA" or "Act"). Congress enacted IRCA to control the entry of undocumented workers into this country by prohibiting the employment of aliens who are unauthorized to work in the United States. Immigration Reform and Control Act of 1986, H.R. Rep. 682, 99th Cong., 2d Sess., pt. 1, at 46, reprinted in 1986 U.S. Code Cong. & Admin. News 5649, 5650. The Act created a system of civil and criminal penalties to be imposed on employers who violate its prohibitions. Id.

 Congress recognized, however, that a special agricultural worker program was needed to counter the labor reduction that would result from the implementation of IRCA. As the Committee report explains:

Extensive testimony was received to the effect that employer sanctions will result in the removal of substantial numbers of undocumented individuals from the agricultural work force. Agricultural interests, particularly western growers of perishable agricultural commodities . . . have come to rely heavily on the existence of an undocumented work force.

 Id. at 5687. Thus, Congress developed two programs pertaining to "seasonal agricultural services," to give effect to the Act's employer sanctions while, at the same time, "prevent[ing] labor shortfalls and dislocations which have the potential to disrupt harvests and interfere with marketing process." Id.

 The RAW program requires the Secretaries of Labor and Agriculture (Secretaries) each year from 1990 to 1993 to determine whether or not a shortage of seasonal agricultural workers exists. The determination is to be based on a calculation of the "shortage number," which is derived, basically, by subtracting the supply of seasonal agricultural workers in the United States from the need for such labor.

 The House Report to the IRCA outlines the manner in which the Secretaries are to derive the supply and need estimates. Id. at 5691. Based on the shortage number calculated from those estimates, the Secretaries are to "jointly determine the number (if any) of additional aliens who should be admitted to the United States or who should otherwise acquire the status of aliens lawfully admitted for temporary residence under this section during the fiscal year to meet a shortage or workers to perform seasonal agricultural services in the United States during the year." 8 U.S.C. § 1161(a)(1).

 The RAW program also includes an emergency procedure for increasing the shortage number during a fiscal year to permit the admission of additional foreign workers. Id. § 1161(a)(7). The purpose behind the emergency procedure is explained in the Committee report:

The Committee anticipates that the emergency increase provision would apply in cases of an unanticipated bumper crop, a significant change in weather conditions or cropping patterns, or other significant changes that could not have been reasonably predicted or accounted for in the original determination of the shortage number for a fiscal year. It is not designed or intended to deal with localized, short-term problems that individual farmers may have in obtaining needed seasonal agricultural workers. The emergency provisions of the replenishment worker section are intended to provide for an increase where there was a significant understatement of the shortage number needed for a fiscal year.

 H.R. Rep. 682, supra, 1986 U.S. Code Cong. & Admin. News at 5691. According to the procedure, "after the beginning of a fiscal year, a group or association of employers . . . may request the Secretaries to increase the shortage number for the fiscal year upon a showing that extraordinary, unusual, or unforeseen circumstances have resulted in a significant increase in the shortage number" due to a significant increase in the need for seasonal agricultural labor, a significant decrease in the supply of such labor, or a significant decrease in the number of man-days worked by aliens recently admitted. 8 U.S.C. § 1161(a)(7)(A). The Secretaries must publish a notice of any request made pursuant to the emergency procedure provision, afford interested parties an opportunity to respond, and make and publish their determination within 21 days of the receipt of the request. Id. § 1161(a)(7)(B), (C).

 The Secretaries promulgated regulations to implement the RAW program. In Count I of the Complaint, plaintiffs have challenged the rulemaking which resulted in the regulations setting forth the methodology for determining the annual shortage number as violative of the Administrative Procedure Act ("APA"). The plaintiffs have also challenged the determination of the shortage number in 1990 on the bases that it violated the APA (Count II), that it violated the RAW statute (Count III), and that it constituted arbitrary and capricious agency action (Count IV). Finally, the plaintiffs assert that the Secretaries acted arbitrarily and capriciously in promulgating regulations to implement the emergency procedures for increasing the shortage number (Count V). ...

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