PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT r4 5.7 4 UNITED or: - ,iw LABOR, i 3 Sim V. NORTH No. 5 INCORPORATED: f7) TREE FARMS AND w- HIGHLAND FRASER NEW RIVER TREE COMPANY, as joint employers, Appeal from the United States District Court for the. Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. Argued: June 2, 2004 Decided: August 2, 2004 Before WIDENER and WILLIAMS, Circuit Judges, and Robert R. BEEZER. Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation. Reversed, vacated, and remanded with instructions by published opin- ion. Judgc Williams wrote the opinion. in which Judge Widener and Senior Judge Beezer joined. Qu/ Case Document 81 Filed 08/04/04 Page 1 of 15 2 US. DEPT. Larson v. Non'rH CAROLINA Gnowens COUNSEL ARGUED: William Randolph Loftis, Jr., CONSTANGY, BROOKS SMITH, L.L.C., Winston-Salem, North Carolina, for Appellants. Paula Wright Coleman, UNITED STATES DEPARTMENT OF LABOR, Washington, DC, for Appellee. 0N BRIEF: Robin E. Shea, Kristine M. Howard, CONSTANGY, BROOKS SMITH, L.L.C., Winston-Salem, North Carolina, for Appellants. Howard M. Radzely, Solicitor of Labor, Steven J. Mandel, Associate Solicitor, Pattl L. Frieden, Counsel for Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Appellee. OPINION WILLIAMS, Circuit Judge: In this case, the North Carolina Growers Association, Inc.,1 Sexton Tree Farms and Sexton Associates, Highland Fraser Firs. and New River Tree Co. (collectiver the Growers) appeal the district court?s ruling in favor of the United States Department of Labor (the DOL). The district court found that the Growers violated 207 of the Fair Labor Standards Act of I938, 29 U.S.C.A. 201?2?) (West 1998 Supp. 2003) (FLSA). by failing to pay overtime to their workers involved in Christmas tree farming. On appeal, the Growers argue that, because their employees are "employed in agriculture," they are exempted from the FLSA's overtime pay provisions under 2I3tblt12), and that the district court erred in finding that Christmas tree farming was not "agriculture" as that term is defined by 203(f) of the FLSA. The Growers also appeal the grant of a permanent injunction against future violations of the FLSA. Because we. find that Christmas tree farming is "agriculture," we reverse the grant of sunt? mary judgment in favor of the DOL and remand the case to the dis- trict court with instructions to enter judgment in favor of the Growers. We also vacate the permanent injunction against the Growers. ?North Carolina Growers Association is a trade associatirm that aids its members in obtaining seasonal I'arnt labor by assisting with the compli- cated legal matters that arise in the hiring of such labor. Case Document 81 Filed 08/04/04 Page 2 of 15 U.S. DEPT. LABOR v. NORTH CAROLINA 3 l. The facts of this case are essentially undisputed. Although consum- ers decorate their homes with Christmas trees for just a few weeks each year. cultivating a proper Christmas tree takes substantial effort and management.2 The process begins with the planting of tree seed- lings in a nursery. While the trees grow in the nursery, they are treated with fertilizer, herbicides. and pesticides to encourage growth and reduce the incidence of weeds. insects, and disease. After approx- imately three years, the seedlings are transplanted into lineout beds, where they remain for two more seasons. The small trees are then lifted and planted into cultivated soil that is tested by the North Caro- lina Department of Agriculture on a yearly basis to determine whether mineral or fertilizer applications are necessary. The trees are planted in rows, about four or five feet apart, and they remain in the ground until they are harvested for use as seasonal trees. generally seven to ten years after being planted in the ground. While in the soil, the trees are pruned and sheared yearly: they also are treated twice a year with herbicides and fertilized once or twice a year. When necessary, pesti- cides are applied. Most Christmas tree farms Lise sprinklers to water the tree seedlings while they grow in the nurseries and lineout beds and sometimes when the trees are planted in the field. Christmas trees are usually harvested with chainsaws at the rate of 1.000 per day. although some are bagged for sale with the root ball intact. In choosing which trees to harvest. Christmas tree farmers grade the trees based on "uniform density, Ctood shape. color and nee- dle retention" as well as height. (1A. at 353.) Christmas trees are har? vested individually based on these criteria: growers do not harvest entire rows at a time. After the sorted trees are cut down, they are baled, taken to storage, and then hauled in bulk to their end destinas tions. Christmas trees are sold for ornamental purposes, typically dur? ing the Christmas season. At the close of the Christmas season. 2Christmas tree farming has evolved since the FLSA was enacted in 1938. Before the 1960?s. Christmas tree harvesting was more in the nature of individuals who took what nature provided." at 353.) However. since the mid 1960's. Christmas tree farming has evolved into the current system where growers plant and cultivate the trees for harvest. Case Document 81 Filed 08/04/04 Page 3 of 15 4 U.S. Dlit?T. Larson v. NoR'rn CAROLINA GRUWERS purchased trees usually are discarded, although consumers who pur- chase Christmas trees with the root ball intact usually replant them for ornamental purposes after the Christmas season. This appeal results from an enforcement action brought by the DOL against the Growers for their failure to pay overtime to their sea- sonal workers, as required by 207 of the FLSA. The FLSA requires employers to pay overtime to most hourly workers, but employees who are "employed in agriculture" are exempt from the over? time provisions. 29 U.S.C.A. ?213(b)( I2) (West [999). Because. Christmas tree farm operations intensify as the Christmas season approaches, most farms require seasonal labor to help harvest the trees. In 1993. the Growers sought to hire a workforce of legal aliens to perform these seasonal services on their Christmas tree farms. The Growers applied for and received permission to hire seasonal alien workers as non?agricultural employees under the Immigration Reform and Control Act (IRCA). 8 U.S.C.A. 1188 (West 2004'). Because the DOL classified these alien workers as non~agricultural employees in granting the applications, the Growers considered Christmas tree farming to be non-agricultural and accordingly paid the seasonal workers overtime. In 1995, however, the DOL informed the Growers that it considered the seasonal workers to be agricultural employees for purposes of IRCA. Under IRCA, employers of seasonal agricul- tural employees must provide the employees with certain statutorily defined benefits, such as free housing, meals, and transportation. See. rug, 8 U.S.C.A. 1188(ctt4): 20 C.F.R. 655.10th). After receiving notice of the position. the Growers began providing the bene- fits required by IRCA to their seasonal employees but ceased paying their workers overtime. believing that the DOL considered their employees agricultural and thus exempt from the overtime provisions of the FLSA. Contrary to the Growers? belief, the DOL informed them that it considered the Growers? seasonal employees to be agricultural employees under IRCA, but that they were not employees engaged in agriculture under the The Growers objected to this system of 3IRCA defines agricultural laborers as those whose work qualifies as "agricultural labor" under Section 3121(g) of the Internal Revenue Code Case Document 81 Filed 08/04/04 Page 4 of 15 US. DEPT. v. CAROLINA Gnoweas 5 dual classification, whereby they were required to provide free hous- ing and other benefits while also paying overtime to the laborers, and. until the tiling of this enforcement action, they refused to pay over- time to their seasonal workers." The Secretary of Labor filed an enforcement action against the Growers on August 5, 1998, requesting back pay and an injunction for the Growers? alleged violation of the FLSA. Following discovery, both parties moved for summary judgment on the issue of whether Christmas tree farming fell within the agricultural exemption to the FLSA. On September 4, 2003, by published opinion, the district court granted summary judgment in favor of the DOL and awarded back pay in an amount to be determined by the parties. The district court also issued an injunction against the Growers to ensure their future compliance with the FLSA.5 See (Vino North (.?urolina Groit'crs Ass?n, 280 F. Supp. 2d 500, Si l?I2 (W.D.N.C. 2003). The Growers appeal, and we have jurisdiction under 29 U.S.C.A. l29l (West 1993). On appeal. the Growers argue that Christmas tree farming falls within the definition of "agriculture" in 2030?), while the DOL con- tends that, as determined by the district court. 203(1") is ambiguous. and as those employed in ?agriculture" as defined in the FLSA. 8 U.S.C.A. As relevant here, Section 312ltg) pro- vides that "agricultural labor" includes labor done "on a farm. in the employ of any person, in connection with cultivating the soil. or in con- nection with raising or ham-testing any agricultural or horticultural com? modity." 2o U.S.C.A. (West Supp. 2004). The DOL maintains that the Growers? seasonal workers qualil?y under the defini- tion of "agricultural labor? found in the Internal Revenue Code. but not as workers employed in ?agriculture? as defined in the FLSA. ?Although the complaint alleged that the Growers began violat- ing the FLSA on March '25. 1996. the parties later stipulated that back pay should be calculated from August 4. I996 to August 5. W98 in con- formity with the FLSA's two year limitations period. Sec 29 U.S.C.A. ?255(a) (West I998). 5The district court found an "inherent unfairness" in the treat- ment of Christmas tree farmers. but it believed that redress should be pursued in Congress. at 47.) The DOl.?s brief notes that two bills have been introduced in Congress that would specifically add Cl'iristmas tree farming to the definition of agriculture in 303(1). Case Document 81 Filed 08/04/04 Page 5 of 15 6 US. DEPT. LABOR v. NORTH CAROLINA Gaowsas and we should defer to its interpretive bulletins. which define Christ- mas tree farming as forestry. and not agriculture. Although we recog- nize that the interpretation is long standing, we agree with the Growers that Christmas tree farming falls within the definition of agriculture in ?203(f). 111. A. We review the district court?s grant of summary judgment in favor of the DOL de novo. Am. Chiropractic Ass'tt r. Trigon Inc, 367 F.3d 212, 221 (4th Cir. 2004). Summary judgment is appro? priate "if the pleadings. depositions. answers to interrogatories. and admissions on file. together with the affidavits. if any. show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgn'tent as a matter of law.? Fed. R. Civ. P. 56(c) (West 1994): see Cehttm? Corp. C(tfl?t?ff. 477 US. 317, 322 (1986). B. The FLSA is the "minimum wage/maximum hour law." Marathon v. Charity 0fChester?eld. 95 F.3d 1263, 1266 (4th Cir. 1996) (internal quotation marks omitted). The congressional purpose in passing the FLSA was "to protect all covered workers from substandard wages and oppressive working hours." AMamas-Best Freight hie, 450 U.S. 728. 739 (1981). Pursuant to that goal. coverage under the FL-SA is construed "liberally to apply to the furthest reaches consistent with congressional direction.? Mitchell Lithh'tt. Mchatghy dc Assume. 358 US. 207. 21 1 (1959). Accordingly, "[elxemptions from or exceptions to the Act?s requirements are to be narrowly construed." 95 F.3d at 1267 (quoting Johnson v. City of (Tn/timbre. 949 F.2d 127. 129-30 (4th Cir. 1991)) (alteration in original). Furthermore. "application [of an exemption is] limited to those establishments plainly and unmistakably within [its] terms and spirit.? Arnold Ben Iran, 361 U.S. 388. 392 (1960). The employer bears the burden of proving it falls within an exemption. Mitchell v. Kentucky Fin. (70.. 359 US. 290. 291 (195.9). Case Document 81 Filed 08/04/04 Page 6 of 15 U.S. DEPT. Lsnoa v. CymoLIrs-zs 7 When interpreting statutes we start with the plain language. Lennie v. United States Tia, I24 S. Ct. 1023. l030 (2004). "It is well estab- lished that when the statute's language is plain, the sole function of the courts?at least where the disposition required by the text is not absurd??-?is to enforce it according to its terms." Id. (internal quotation marks omitted). In interpreting the plain language of a statute, give the words of a statute their ordinary, contemporary. common meaning, absent an indication Congress intended them to bear some different import." l-Villi'mns r. Ta?t'lnr, 52?) U.S. 420. 43] (2000) (inter- nal quotation marks omitted.) We also abide by "the cardinal rule that statutory language must be read in context [because] a phrase gathers meaning fromthe words around it." Gen. Dynamics Land Sis. Inc". (Vine, 124 Ct. I236. 1246 (2004) (internal quotation marks omit- ted). The statute. provides that employees who are "employed in agricul- ture" are exempt from the overtime provisions of the FLSA. 29 U.S.C.A. 213(b)(12). Agriculture is defined in 203(f) of the FLSA as follows: "Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation. growing. and har- vesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section ll4ljt'g) of Title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for mar- ket, delivery to storage or to market or to carriers for trans- portation to market. 29 U.S.C.A. ?203th (West I998). Section 203(f) thus creates both a primary and a secondary defini- tion of agriculture. See Farmers Reservoir dz Irrigation Ca. Mchtib. 337 U.S. 755, 762 (I949). The primary definition of "?[ajgrieulture? includes farming in all its branchesl.] . . . includ[ing] the . . . cultiwttion, growing, and harvesting of any agricultural or hor- Case Document 81 Filed 08/04/04 Page 7 of 15 8 US. Deer. LABOR v. NORTH CAROLINA ticultural commodities." 29 U.S.C.A. 2030'). The secondary defini- tion is broader and "includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidently to or in conjunction with 'such' farming.? Farmers Reservoir, 337 US. at 763. Forestry and lumbering operations are examples of practices which may fit within the secondary definition of agriculture but only if performed on a farm or by a farmer as an incident to other farming Although the placement of forestry in the secondary definition does not necessarily indicate that Congress intended to exclude forestry from the primary definition, other provisions of the FLSA make clear that forestry and lumbering operations are excluded from the primary definition of agriculture. Section 2l3tb)(28) exempts: [Alny employee employed in planting or tending trees, cruising, surveying, or felling timber, or in preparing or transporting logs or other forestry products to the mill, pro- cessing plant, railroad, or other transportation terminal. if the number of employees employed by his employer in such forestry or lumbering operations does not exceed eight. 29 U.S.C.A. 1999). This exemption would be superfluous if Congress had not intended to exclude forestry from the primary definition of agriculture in See Hibbs r. til/hm, 124 Ct. 2276, 2286 (2004) statute should be construed so that effect. is given to all its provisions, so that no part will be . . . superfluous") Thus, ?2l3(b)t28) evidences the implicit exclusion of forestry and lun'ibering operations from the scope of the primary definition of agriculture under 203tf) and also 6The Growers concede that because their Christmas tree farming is not incident to any other farming practice, they cannot fit within the second- ary definition. The Growers do contend, however, that operations con- ducted after the harvesting of Christmas trees. such as shipping the trees to storage facilities, fall within the secondary definition if Christmas tree farming is within the primary definition Of 2030'). 7On appeal, the Growers have not addressed the applicability of this exemption to their Christmas tree farms. Case Document 81 Filed 08/04/04 Page 8 of 15 U.S. DEPT. LABOR v. NORTH CAROLINA GRownRs 9 serves to define the scope of the forestry and lumbering operations so excluded.B With this framework in mind, we turn to the question before us. The Growers argue that they are exempt from the overtime provisions with respect to their Christmas tree workers because Christmas tree farming is agriculture under 2030??). Specifically, the Growers argue that Christmas tree farming involves the cultivation of an agricultural or horticultural commodity. See 29 U.S.C.A. 2030). Giving the language of 2030') its contemporary, ordinary meaning, we agree. Without question, modern Christmas trees are cultivated commodi- ties. or "economic ll/ebster?s Third New 1m"! Dictionary 458 (I986). As described above, they undergo extensive care and management before they are eventually harvested for sale to consum- ers. Thus, if Christmas trees are "agricultural" or "horticultural," their cultivation, growing, and harvesting is agriculture under ?203(t). Horticulture is "the science and art of growing . . . ornamental plants.? Id. at l093. Ornamental plants are those "having decorative quality or value.? Id. at l592. Because Christmas trees are ornamental plants that are grown and harvested, we believe that they are horticultural com- modities.10 Accordingly, the cultivation, growing, and harvesting of BCongress did not title ?213(h)(28) as the definition section for for? eslry and lumbering operations, but as "there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning," we believe that the activities listed in are the "forestry or lumbering operations" excluded by Con- gress from primary definition. Ail. Cleaners Dyers, Inc'. v. United States, 286 US. 427, 433 (I932), 9Our analysis applies only to those growers and practices before us. We offer no opinion on whether individuals who enter forested lands and I cut wild-growing Christmas trees are workers employed in agriculture. I toThe Departments of Agriculture in North Carolina and Oregon, the states with the two largest productions of Christmas trees in the United States, both consider Christmas tree farming to he horticulture. See North Carolina Dep?t of Agric. and Consumer Serv. Mktg. Div. Green lndus. Christmas Trees, urcu?lablr.? at horticul/xmastree/ (listing Christmas trees as a horticultural commodity); see also Oregon Dep?t of Agric.. Nursery and Christmas Tree Program, available at (explaining that Christmas tree farms are licensed and monitored by horticulturists). Case Document 81 Filed 08/04/04 Page 9 of 15 l0 U.S. DEPT. LABOR v. NORTH CAROLINA Christmas trees falls squarely within the primary definition of agricul- ture in ?203(f), and the Growers have met their burden of proving that they fall "plainly and unmistakably within [the exemption?s] terms and spirit." Arnold, 36] US. at 392." The DOL maintains that even if Christmas tree farming fits within the express definition of agriculture under ?203(f). it is nonetheless excluded because it. constitutes forestry, which Congress implicitly has excluded from the primary definition of agriculture. The DOL points to the many sir-nilarities between Christmas tree farming and for- estry.12 If the FLSA provided no guidance beyond ,5 2030') as to what forestry ope-rations Congress intended to exclude from the primary definition of agriculture, we might agree with the DOL that Christmas tree farming is an excluded forestry operation. Given the specific def- inition of "forestry or lumbering operations? in ?2l3(b)(28), how- ever, it is clear that Christmas tree farming is not a "forestry or 11It. would also not be unreasonable. however, to find that Christmas trees were agricultural commodities under Agriculture is, among other things, "the science or art of . . . harvesting crops," which are . . . that can be grown and harvested extensively for profit." Webster's? Third New lnt?l Dictionary 44, 540 I986). Because Christmas trees are plants that are grown and harvested extensively for profit, it would also be reasonable to find that they are agricultural commodities. Sec Oregon Dep?t of Agric., Story Of the Week. available at (defining Christmas trees as one of Oregon?s "top agricultural commodities?). 12Like Christmas tree farming. forestry often involves the planting of trees in rows, occasional treatment with herbicides, and the cutting down of trees with chainsaws. There are, however, numerous differences between forestry and Christmas tree farming. Unlike a fin-estry tree, the Christmas tree is the commodity; no further processing is required before sale to the ultimate consumer. In addition to the distinction in end use, the cultivation techniques also differ. All Of the Growers use mechanical planters and apply herbicide, pesticide, and fertilizer on an annual basis. The Growers also manage the Christmas trees during the trees? entire rotation. (LA. at 299.) Forestry trees only receive herbicide, pesticide, and fertilizer early in their development and are. not managed as inten- sively as Christmas trees. Christmas trees also are sheared and pruned regularly during growth, while forestry trees are not sheared at all and are pruned only early in their development. Case Document 81 Filed 08/04/04 Page 10 of 15 U.S. DRPT. LABOR v. NORTH CAROLINA Gnoweas lumbering operationll? that Congress intended to exclude from the primary definition of agriculture. While the definition of forestry and lumbering operations in 2 includes the "planting and tending of trees," reading that phrase in context, see Cline, l24 1246, it is apparent that Con- gress was describing trees being used for traditional forestry purposes as "timber" and "pulp." l-Vebster's Third New Int?l Dictionary at 890, 1840. Section 213(blt28) refers also to "cruising, surveying, or felling timber," and to ?preparing or transporting logs or other forestry prod- ucts to the mill, [or] processing plant.? 29 U.S.C.A. These provisions help clarify that the phrase "planting and tending of trees" refers only to trees that will be used for their wood as timber or pulp. The common meaning of other terms associated with traditional forestry support this reading of ?2l3(b)(28). Timber is "growing trees or their wood,? specifically, "wood used for or suitable for build- ing . . . or for carpentry orjoinery." Third New [111'] Dictio- nary at. 2394. Similarly, "lumbering" is "the business of cutting or getting timber or logs from the forest for lumber." Id. at I345. The production of Christmas trees, which are sold for decorative use. not as lumber or as wood for building, does not fall within the common meaning of these terms. Because Christmas trees are not processed into pulp or harvested as timber, we conclude that Christmas tree farming is not forestry or lumbering as those terms are used in the FLSA.13 Accordingly, we hold that the cultivation, growing, and har- vesting of Christmas trees is agriculture as defined in ?203tf). and that the employees of the Growers are thus exempt from the overtime provisions of the FLSA. 13Our reading Of 2l3tb)(28) is confirmed by its legislative history. One proposal would have added "forestry in all its branches" to the pri- mary definition of 203m. Its purpose would have been "to exclude the harvesters of the timber crop" from the overtime protections of the FLSA. 95 Cong. Rec. I (emphasis added). Furthermore, in adopt- ing the version codified at supporters of the bill explained that "the small lambmr-imt in the woods cannot operate in competition with the big operators." 95 Cong. Rec. l-ll 212 (emphasis added). Thus, the legislative history also shows that Congress understood forestry to be the planting and tending of trees to be used as timber. Case Document 81 Filed 08/04/04 Page 11 of 15 12 U.S. DEPT. LABOR v. CAROLINA Gnowans C. We recognize that our interpretation of 203(f) undercuts a history of DOL interpretation. At least since 1956, the. DOL has interpreted ?203(f) to exclude Christmas tree farming. See '29 C.F.R. ??780.115, 780.200, 780.208 (2003). The interpreta- tive bulletins, however, were adopted without notice and comment rulemaking and without a formal adjudication, and accordingly, lack the force of law. The Supreme Court has made clear that in such situ- ations, we defer to the agency?s interpretation only to the extent that the interpretation has the power to persuade. Skit/awry r. Stet/'1 323 U.S. 134 (1944); see Christensen v. Harris County; 529 U.S. 576, 587 (2000); United States v. Mead Corp, 533 U.S. 218, 234 (2001) ("Chevron did nothing to eliminate .S'lcidmnre?s holding that an agen- cy?s interpretation may merit some deference whatever its form . see also 1 K. Davis R. Pierce, Administrative Law Treatise 3.5 (3d ed. 1994) ("Congress has not delegated to any agency the power to make policy decisions that bind courts and citizens through [interpretive The weight accorded interpretative bulletins ?depend[s] upon the thoroughness evident in [the agency?s] consider- ation, the. validity of [the agency?s] reasoning, its consistency with earlier and later pronouncements, anti all those factors which give it the power to persuade." Skidmm'e, 323 U.S. at 140. Although the interpretation has been consistent, we con- clude that it lacks the power to persuade. Because the bulletins were not adopted after notice and comment rulemaking, they lack the thor- oughness of such rules. For example, 29 C.F.R. ?780.1 5 provides that "[t]rees grown in forests and the lumber derived therefrom are not "agricultural or horticultural commodities.? Christmas trees, whether wild or planted, are also not so considered." As the Growers note, this statement begs the question of why Christmas trees are not so consid? ered. Without an explanation of how the DOL came to its conclusion, it is impossible for us to be persuaded by the reasoning. Simi- larly, 788.10 provides that Christmas trees are "other forestry prod- ucts? without any explanation. 29 CPR. 788.10. Finally, 29 C.F.R. 780.201, entitled "Meaning of ?forestry or lumbering operations,? provides: The term "forestry or lumbering operations" refers to the cultivation and management of forests, the felling and trim? m__ww . Case Document 81 Filed 08/04/04 Page 12 of 15 U.S. DEPT. LABOR v. CAROLINA GRUWERS l3 ming of timber, the cutting, hauling, and transportation of timber, logs. pulpwood, cordwood, lumber, and like prod? ucts, the sawing of logs into lumber or the conversion of logs into ties, posts, and similar products, and similar opera- tions. It also includes the piling, stacking, and storing of all such products. The gathering of wild plants and of wild or planted Christmas trees are included. Like 780.1 15 and 788.10, this section provides no analysis as to why Christmas trees are included within "forestry or lumbering opera- tions.? The bulletins also make an arbitrary distinction between Christmas tree farming and nursery trees. According to the. DOL, trees grown at a nursery are agriculture. See 29 C.F.R. 780.205 (defining agricul? ture to include "[slowing seeds and otherwise propagating fruit, nut, shade, vegetable, and ornamental plants or trees (but not Christmas trees), and shrubs, vines, and flowers?) Under the statutory language there is no justifiable reason for the distinction between trees grown at a nursery and trees grown at a modern Christmas tree farm. Nur- sery operations involve the. cultivation of horticultural and agricultural commodities, so. like Christmas tree farming, they fall within the pri? mary definition of? 203(f). The DOL. is correct that there are distinc- tions between the cultivation and growth of nursery trees and Christmas trees, but none of the distinctions are relevant under the stat- ute.14 We also note that when the DOL originally promulgated these bul? letins in the 1950s, Christmas tree farming as we know it today essen~ tially did not exist. Prior to the late 1960s, Christmas trees were either cut down from the wild or planted and harvested with little or no management. As discussed above, contemporary Christmas tree oper- ations involve extensive management. While the categoriza- tion of Christmas tree farming as non-agriculture may have been 14For instance, nursery trees undergo more intensive irrigation and fer- tilization than Christmas trees and have fewer naturally growing weeds in their soil. Nursery trees are usually grown in grow-bags or planted in fields and are sold individually for ornamental purposes after a shorter growing period than Christmas trees. Case Document 81 Filed 08/04/04 Page 13 of 15 14 US. DEPT. LABOR v. NORTH CAROLINA persuasive at the time the bulletins were promulgated, the significant changes in the industry's cultivation and management techniques since that time render the original bulletins unpersuasive. The DOL has reconsidered its position on Christmas tree farming on three occa- sions, most recently in 199]. On each occasion, the DOL has issued Opinion letters adhering to its original interpretative bulletins. The letters, however, reject the. position that Christmas tree farm- ing is agriculture without any consideration of the evolution of the industry. Accordingly, we find that the reconsiderations also lack the power to persuade. IV. Because Christmas tree farming falls within the primary definition of "agriculture" in ?203(f), we reverse the grant of summary judg- ment in favor of the DOL and remand the case with instructions for the district court to enter summary judgment in favor of the Growers. We also vacate the permanent injunction against the Growers. REVERSED, VA CA TED. AND REMANDED WITH INSTR Case Document 81 Filed 08/04/04 Page 14 of 15 JUDGMENT FILED: August 2, 2004 UNITED STATES COURT OF APPEALS for the Fourth Circuit NO. 03*2380 UNITED STATES DEPARTMENT OF LABOR Plaintiff Appellee EXQEE. I If, v. NORTH CAROLINA GROWERS ASSOCIATION, SEXTON TREE FARMS AND SEXTON HIGHLAND FRASER NEW RIVER TREE COMPANY, as joint employers Defendants Appellants Appeal from the United States District Court for the Western District of North Carolina at Statesville In accordance with the written opinion of this Court filed this day, the Court reverses and vacates the judgment of the District Court. This case is remanded to the District Court for further proceedings consistent with the Court's opinion. A certified copy of this judgment will be provided to the District Court upon issuance of the mandate. The judgment will take effect upon issuance of the mandate. Patricia S. Connor CLERK Case Document 81 Filed 08/04/04 Page 15 of 15