The government on Monday published a proposed regulation that would prevent thousands of foreign sugar cane harvesters from qualifying for permanent U.S. residence status under a program for seasonal farm workers.
The Agriculture Department published the proposed regulation to comply with an order issued last month by a judge who found that the agency had procrastinated in revising rules he had previously struck down.
Last spring, U.S. District Judge Thomas F. Hogan ruled that the USDA had arbitrarily excluded sugar cane workers from the seasonal agricultural worker program.
Under the 1986 Immigration Reform and Control Act, seasonal workers who enter this country to harvest perishable farm commodities have until Nov. 1 to apply for permanent U.S. residency.
Hogan, in ordering the USDA to redraft its regulations, said that the department had not justified excluding sugar cane from its list of perishable commodities and held the agency's definition of vegetable was "arbitrary and capricious."
In the response published in Monday's Federal Register, the USDA stood by its previous position but produced a more extensive definition of vegetable.
It defined vegetables as "the human edible herbaceous leaves, stems, roots or tubers of plants, which are eaten, either cooked or raw, chiefly as the principal part of a meal, rather than as a dessert."
The proposed regulation noted that "sugar cane is not eaten (cooked or raw) during the main course of a meal, either as a principal dish or as a side dish."
"While the juice of the sugar cane is digestible, the cane itself is not digestible by humans," the USDA said. "USDA is unaware of the use of sugar cane as a vegetable as that term is defined in horticultural science and in this proposed regulation."