ORDER
This case involves a challenge to the validity of two regulations promulgated jointly by the Department of Homeland Security and the Department of Labor in 2015 in connection with the H-2B visa
Background
The Immigration and Nationality Act of 1952 established a comprehensive statutory framework for the regulation of immigration in this country. See Immigration and Nationality Act .of 1952 (“INA”), 66 Stat. 163, as amended, 8 U.S.C. § 1101, et seq. In-relevant part, the INA included provisions' for permanent and temporary foreign workers and provided a means through which those workers could enter the United States for employment purposes as long as certain conditions were met.- Prior to 1986, a single program existed for all temporary foreign workers. Congress decided, however, that the earlier program did not “fully meet the need for an efficient, workable and coherent program that protected] • the interests of agricultural employers .and. workers alike” and therefore amended the INA as part of the Immigration Reform and Control Act of 1986 to provide for two separate programs: the H-2A program for agricultural workers and the H-2B program for non-agricultural workers. H.R.Rep. No. 99-682, pt. 1, at 80; see also Immigration Reform and Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, § 301(a), 100 Stat. 3359, 3411 (codified, at 8 U.S.C. § 1101(a)(15)(H)(ii)(a)-(b)).
Under the H-2B program, which is the program relevant to this case, an employer may hire an individual “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such
. The Department of Labor (“DOL”) first issued formal regulations establishing standards and procedures for. certifying employers’ requests to import H-2 workers in 1968. See 33 Fed.Reg. 7570 (May 22, 1968). DOL later supplemented' the regulations with informal, non-binding guidance letters. It was not until 2008 that DOL published another formal regulation governing the labor certification process. See Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture (H-2B Workers), 73 Fed.Reg. 78020 (Dec. 19, 2008). The 2008 regulations provided rules governing, inter alia, the wages that employers were required to pay Hr-2B workers. 73 Fed.Reg. at 78056-57. These regulations spawned a long-running controversy over administration of the H-2B program that continues to the present day.
Since 2008, opponents of various aspects of the H-2B program have filed a series of successful court challenges, see Comité de Apoyo a los Trabajadores Agrícolas v. Solis, No. 2:09-240 LP,
Discussion
In their motion for summary judgment, Plaintiffs argue: (1) DHS violated the APA, 5 U.S.C. § 553, by promulgating the 2015 Program Rule without prior notice and comment; (2) DHS and DOL violated the APA by promulgating the 2015 Wage Rule without prior notice and comment; (3) the 2015 Program Rule and Wage Rule’s provision for administering the H-2B program in a way that does not “adversely affect” United States workers im-permissibly. alters Congress’s statutory scheme for that program under the IRCA, 8 U.S.C. §. 1101(a)(15)(H)(ii)(b), and is an arbitrary and capricious “per se” rule; and (4) the 2015 Wage Rule is arbitrar/ and capricious under the APA, 5 U.S.C. § 706, because its formula for determining whether a particular H-2B wage level would adversely affect United States workers is not rational.
As a preliminary matter, the Court observes that Plaintiffs have explicitly “move[d] for entry of summary judgment on each count of their Complaint.” Plaintiffs’ Complaint contains four counts, alleging: (1) DHS and DOL violated the Administrative Procedures Act (“APA”), 5 U.S.C. § 553, in promulgating the 2015 Program Rule and Wage Rule without pri- or notice and comment; (2) the 2015 Program Rule and Wage Rule are unlawful under the' APA, 5 U.S.C. § 706, because they are arbitrary and capricious;
Furthermore, Plaintiffs fail to meaningfully develop their., fourth argument on summary judgment, which pertains to Count. II of their Complaint. Plaintiffs’ argument on this claim, quoted in its entirety from their Motion for Summary Judgment, is as follows:
The premise of DHS’ costly regulation is the asserted need to prevent “adverse effect.” Yet, DHS provides no basis for concluding that adverse effect even exists. DHS offers at least two rationales for. its assertion that-adverse • effect might exist. Neither is rational;. See Bronars Report, ¶¶ 20, 21. This is the heart of DHS’ wage rule. DHS’ understanding of “adverse effect” is a mathematical artifact of the ■ definition of án “average” or “mean.” See Bronars Report, ¶22. By definition, all" other things being equal, a data point below the average will lower the average. But that does mean it will affect wages.- But that is not all. DHS failed to consider several other factors that any reasoned decision making process would take into account: See Bronars Report, ¶ 38. Thepoint of this analysis is not so much that DHS is wrong; rather, the point is DHS’ haste led it to skip over several major issues with the validity of its central justification for the 2015 H-2B Final Wage Rule in particular but also with the 2015 H-2B Program Rule. The APA guarantees that federal agencies will conduct a logical and rational process in formulating rules and that no rule will have the force of law if it is not the product of .a logical and rational process. Neither of the New Rules are the product of such a process and so must be set aside until DHS approaches these issues with the analytical rigor that they deserve and which the APA requires.
Notably, Plaintiffs fail to árticulate why the 2015 Wage Rule'is not sound. Plaintiffs assert that DHS has two rationales for the Rule, but they identify neither. Plaintiffs criticize DHS’s understanding of “adverse effect,” but provide no explanation beyond a cryptic comment on the proper way to calculate a mean. And Plaintiffs assert that DHS failed to consider “several other factors” and “skip[ped] over several major issues,” but neglect to explain what .those factors and issues are and why consideration of those matters was required for -an “analytically] rigorous]” analysis. Although Plaintiffs do cite to the record in support of their general assertions, “[tjhere is no burden upon the district court to distill every potential argument that could be made based upon the materials [in the record] ... on summary judgment." Resolution Trust Corp. v. Dunmar Corp.,
Additionally, Plaintiffs’ Response in Opposition to Defendants’ Motion for Summary Judgment raises, but fails to develop, a number of other points. First, Plaintiffs contend that the H-2B regulations are arbitrary and capricious, because of DHS and DOL’s “attempt to change Fair Labor Standards Act regulations by adopting a special rule for forestry related operations,” but they neglect to explain which “special” portion of the 2015 Program Rule or Wage Rule they refer to, which portion of the Fair Labor Standards Act it would change, or even what that change might be. Second, Plaintiffs contend that DHS and DOL are not “empowered to set a prevailing wage designed to attract U.S. workers into H-2B jobs,” but again they fail to direct the Court’s attention to any specific portion of the 2015 Program Rule or Wage Rule showing that DHS and DOL are doing this. , Instead, Plaintiffs cite to a 2011 Notice of Proposed Rule-Making and public comments received in response to a 2013 Interim Rule — neither of which are at issue in this case. Because .Plaintiffs , have failed to develop these arguments, the Court finds they have been abandoned as well,
Finally, Plaintiffs’’ Response in Opposition to Defendants’ Motion for Summary Judgment attempts to raise a new issue not presented in the Complaint. In their Complaint, Plaintiffs include a single line asserting that DHS .and DOL’s 2015 Program Rule and Wage Rule are arbitrary and capricious, because their “definition of temporary is inconsistent with the definition of that term under the Immigra
•The Court now moves to Defendahts’ argument that Plaintiffs do not have standing to bring this- suit, because they have not suffered a cognizable injury. Specifically, Defendants maintain that Plaintiffs’ allegations-of injury are hypothetical and depend on the actions of third parties not before the Court. Defendants also con-ferid that Plaintiffs National Hispanic Landscape Alliance, ’ National Association of Landscape Professionals, and Sni&ll and Seasonal Business Legal Center cannot establish associational standing, because they do not allege that any specific member of their organizations has suffered a cognizable injury.
To establish standing under Article III, a plaintiff must show: (I) an injury in fact to a legally protected interest that is (a) concrete and particularized, and (b) actual or .imminent, not conjectural or hypothetical, (2) a causal connection between the injury and the complained-of conduct that is fairly traceable to the defendant’s actions, rather than .the independent actions of a third party not before the court,, and ’ (3) likely, rather than merely speculative, - that, the injury is redressable by the court.
In support of standing, Plaintiffs in this case have submitted the declaration of Michael H. Foley, the president and owner of Superior Forestry Services. Foley states that Superior has relied on the H-2B' program for over twenty years, presently employing 259 H-2B workers, and will continue to rely on the program to meet its seasonal labor demands in the future, because it is consistently unable to hire a sufficient number of United States workers for its jobs. Foley maintains that the 2015 Program Rule and Wage Rule will cause Superior to lose customers, goodwill, revenue, and expansion opportunities. According to Foley, Superior obtains many of its contracts through a bidding process and labor costs are among the most significant factors affecting the bid amount. Although Foley recognizes that the new rules create uncertainty about the costs associated with hiring H-2B workers, he states he is certain those costs will increase. Specifically, Foley observes that the 2015 Program Rule and Wage Rule will require Superior to, inter alia, raise its employees’ wages far above the actual market rate for work they perform. In order to compensate for the effects of the new rules, Foley explains that Superior' will have two options — submit higher contract bids, in which case it will lose contracts, or opt not to pass on the additional costs, in which case it will lose money on .the contracts it is awarded. Either way, according to Foley, Superior will be immediately and negatively impacted by the new rules, which ultimately could force it out of business. Finally, Foley asserts that DHS and DOL failed to provide advanced notice of the contents of the 2015 Program Rule and Wage Rule and refused to accept comments from interested parties, such as Superior. He claims that if Superior had been given the opportunity to explain to DHS and DOL the impact of the new pules on its business operations before they became effective, it would have done so.
The Court finds the foregoing declaration sufficient to show a cognizable injury to Superior. Foley’s declaration establishes that as a current and future participant in the H-2B program, Superior will be immediately impacted by the requirements of the 2015 Program Rule and Wage Rule. It explains how the new rules will cause Superior’s labor costs to rise, and claims that this rise in costs will financially harm Superior’s bottom line. Further, it establishes that .DHS and DOL’s immediate implementation of the new rules denied Süperior the opportunity for comment. Therefore, the Court finds that Foley’s declaration, taken as true, is adequate to survive a summary judgment
The Court next addresses the merits of Plaintiffs’ remaining claims, beginning with their assertion that DHS and DOL violated the APA, 5 U.S.C. § '553, by promulgating the 2015 Program Rule without prior notice and comment. Specifically, Plaintiffs argue that DHS and-DOL did not' satisfy the APA’s “good cause” exception to the requirement for prior notice and comment. They contend that DHS and DOL could have continued to run the H-2B program without the new rule under an already existing regulation, 8 C.F.R. § 214.2(h)(6)(iii)(B). They analogize the instant case to Action on Smoking & Health v. C.A.B.,
The APA provides that an agency should provide a notice and comment period before promulgating new regulations in most circumstances. 5 U.S.C. § 553. The statute also permits, however, an agency to skip notice and comment “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” § 553(b)(3)(B). The good-cause exception is “an important safety valve to be used where delay would do real harm,” but at the same time should be interpreted narrowly. United States v. Dean,
The Court finds good cause for DHS and DOL’s decision to promulgate the 2015 Program Rule without notiee and comment. The Court is persuaded by -the cases -cited by Defendants, which found good cause for an agency’s decision to
In Mid-Tex Electric,
In Devine,
In Block,
Similar to the exigent situations faced by the agencies in the foregoing cases, DHS and DOL explain that the 2015 Program Rule was published against the backdrop of litigation that had invalidated essentially all of DOL’s regulations governing the issuance of temporary labor certifications for the H-2B program. See 80 Fed.Reg. at 24046-47; see also Bayou II,
Tellingly, Plaintiffs themselves have highlighted the “significant economic harm” that would result from such a disruption of the H-2B program. In their declarations, Michael Foley of Superior Forestry and James Allen of Bayou Lawn & Landscaping Services stress that their businesses depend heavily on H-2B workers to meet their seasonal demand for labor, because they cannot find a sufficient number of United States workers to service their customers. As both Foley and Allen explain:
[d]elays in obtaining certifications and visas for H-2B workers will result in serious harm to [our businesses], since we need these workers to begin on the date of need stated in the job order.... [I]f the H-2B workers do not arrive on time, we will not be able to meet our contractual duties to our clients and we will lose customers and good will.
Both Foley and Allen insist that without the H-2B program they would be forced to significantly cut back their operations, or even go out of business entirely.
DHS and DOL "made the choice to promulgate the 2015 Program Rule immediately, rather than allowing the application process to stall while public notice and comment was conducted in advance of new regulations. By doing so, DHS and DOL were able to sidestep the very real harm that would have been suffered by businesses dependent on H-2B workers if their visa applications could no longer be processed. Like the courts in Mid-Tex Electric Cooperative,
Plaintiffs’ cases fail to suggest otherwise. In Action on Smoking,
Curiously, Plaintiffs’ cite to Dean,
The Court moves next to Plaintiffs’ position that DHS and DOL violated the APA by failing to allow for notice and comment before promulgating the 2015 Wage Rule. Specifically, Plaintiffs dispute DHS and DOL’s assertion that they satisfied the APA’s notice and comment requirement by accepting comments in response to an interim version of the rule promulgated in 2013. Plaintiffs argue that the comments from the 2013 Interim Rule are- stale, and that DOL itself admitted that new comments were required. Plaintiffs cite to a “Notification of Status of the 2011 H-2B Wage Rule” published by DOL in 2014, and again direct the Court to Action on Smoking,
In Mineta,
The Court finds that the instant case is analogous to Mineta, because the public had a meaningful opportunity to comment on the major issues of the 2015 Wage Rule in response to the interim version of that rule promulgated in 2013. The H-2B program requires that employers offer wages to foreign workers which are equal to or greater than the “prevailing wage” for a particular occupation and in a particular geographic area in the United States. See, e.g., 76 Fed.Reg. at 3452. In 2013, DOL promulgated an interim regulation providing a revised methodology for calculating the prevailing wage, which allowed employers to use' either: (1) the collective bargaining agreement (“CBA”) wage rate if the job opportunity was covered by such an agreement; (2) the mean of the Occupational Employment Statistics (“OES”) wage for the occupation in the’ area of intended employment; (3) the wage rate as determined by an employer provided survey; or (4) the wage rate under the Davis-Bacon Act (“DBA”) or “McNamara-O’Hara Service Contract Act (“SCA”). See 78 FR 24053-56. Though they implemented the 2013 regulation immediately, DHS and DOL solicited public comments on each of these methods of calculating the prevailing-wage, id., and received over 300 comments in response, 80 Fed.Reg. at 24149. The 2015 Wage Rule examines these comments-at lengthen its discussion of the changes made from the wage methodology calculations in the 2013 Rule. ' See 80 Fed.Reg. at 24156-76 (discussing public comments in relation to decision to retain OES mean wage and CBA methods, limit use of employer survey method, and eliminate DBA' and SCA methods). Like in' Mineta, the Court finds that the public’s ability to submit extensive comments on the interim rule in 2013, combined with DHS and DOL’s careful consideration of those comments, shows that the public had a meaningful' opportunity to participate in the rule-making process 'with respect to the 2015 Wage Rule. See 5 U.S.C. § 553(c) (“[T]he agency shall give interested persons an opportunity to participate in the -rule making through submission of written data, views, or arguments.... ”).
Finally, the Court is not persuaded by Plaintiffs’ argument that the 2013 comments are stale. Plaintiffs cite to a “Notification of Status of the 2011 H-2B Wage Rule” published in 2014, which states that “DOL has determined that recent developments .in the H-2B program require consideration of the comments submitted in connection with .the 2013, [interim final rule], and- that further notice and comment is appropriate.” Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 79 Fed.Reg. 14450, 14453 (Mar. 14, 2014). Plaintiffs assert that this document is an admission by DOL that in light, of new 'evidence, a new round of notice and comment was required before finalizing the 2015 Wage Rule. However, Plaintiffs take this quote out of context. The foregoing quote refers to the status of a proposed wage rule that was published by DHS and DOL in 2011. 79 Fed.Reg. at 14452. Shortly before the 2011 Rule was to become effective, Congress blocked it through a series of appropriations bills that prevented DOL from expending any funds to implement it. Id. When the funding bar was finally lifted in 2014, DHS and DOL published the forgoing Notification of Status to inform the public that it intended to publish a proposed wage rule “working off the 2011 Wage Rule as a starting point.” 79 Fed. Reg. 14450. :Due to ongoing litigation, however, DHS and DOL ultimately decided to abandon their plan to update the 2011 Rule. See 80 Fed.Reg. at 24151. Instead, DHS and DOL chose to finalize the 2013 Interim Wage Rule, which had been promulgated while the appropriations block was place. 80 Fed.Reg. at 24151. Because DHS and DOL’s plan to update the 2011 Rule never got off the ground, a new round of comments was never initiated. Moreover, the “recent developments in the H-2B program” to which Plaintiffs’ quote refers are simply the promulgation of the 2013 Interim Rule and Congress’s decision to lift the funding ban on the 2011 Rule. As Plaintiffs have failed to point to any other notable developments that came to light between the 2013 Interim Rule and the 2015 Wage Rule, the Court will not simply presume that new information rendered the comments submitted in connection with the 2013 Rule stale.
The Court moves next to Plaintiffs’ argument regarding the 2015 Program Rule and Wage Rule’s provision for administering the H-2B program in a way that does not “adversely affect” United States workers. Plaintiffs argue that considering adverse effect impermissibly alters Congress’s statutory scheme for the H-2B program, because Congress explicitly provided that DHS and DOL should consider this factor in regard to H-2A visas, 8 U.S.C, § 1188(a)(1)(B), but did not include a similar provision with respect to the H-2B visas. In response, Defendants argue that DHS has broad discretion to prescribe the conditions governing admission
Congress has vested DHS with broad authority to regulate the admission of nonimmigrant aliens under INA and IRCA. See INA, 8 U.S.C. § 1184(a)(1) (“The admission to the-United States of any alien as a nonimmigrant shall be for such time and under such conditions-, as [DHS] may by regulations prescribe ....”); IRCA, 8 U.S.C. § 1103(a)- (“The Secretary of Homeland Security shall be charged with the administration and enforcement of [the H-2B visa statute] — [and] shall establish such regulations ... as he deems necessary for carrying out [t]his authority....”). Therefore, DHS’s “judgment that a particular regulation fits within this statutory constraint must be given considerable weight.” Ragsdale v. Wolverine World Wide, Inc.,
The statutory framework specific to the H-2B program is sparse. When Congress bifurcated the H-2 visa program in the mid-1980s to create the H-2A and H-2B classifications, almost all of its attention was directed toward defining the contours of the H-2A program for temporary agricultural workers. IRCA, Pub. L. No. 99-603, § 216,- 100. Stat-3359 (codified as amended at 8 U.S.C. § 1188). The new legislation specifically defined DHS and DOL’s roles under the- H-2A program, made DOL’s labor certifications mandatory, and laid out the conditions under which such a certification would be granted. Id. In regard to the H-2B program for temporary non-agricultural workers, however, Congress left in place the same limited provision that had governed the H-2 program from its outset under the INA in 1952. The legislation defined an H-2B worker -as simply an alien “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable, of performing such service or labor cannot be found in
It is clear from this limited provision that Congress intended that the H-2B visa program should not be used to hire foreign workers at the expense of U.S workers. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b) (providing H-2B workers may be admitted only “if unemployed persons capable of performing such [work] cannot be found in this country”). What is unclear, however, is how< exactly DHS is meant to carry out this directive. Cf. United States v. Haggar Apparel Co.,
DHS has carried out its directive to ensure that foreign H-2B workers are not hired at the expense of United States workers by consulting with-DOL on the matter of domestic labor market conditions. See 80 Fed.Reg. at 24044; see also 8 U.S.C. § 1184(c)(1) (directing DHS to consult with “consult[] with appropriate agencies of the Government before granting H-2B petitions”). In doing so, DHS has required DOL to answer two questions. First, DOL must determine whether “[t]here'are not sufficient U.S. workers who are qualified and who will be available to perform the temporary services or labor for which an employer desires to import foreign workers.” 20 C.F.R. § 655.1(a)(1). Second, DOL must determine whether “[t]he employment of the H-2B worker(s) will ... adversely affect the wages and working conditions of U.S. workers similarly employed.” 20 C.F.R. § 655.1(a)(2).
The Court finds that considering whether the importation of H-2B workers will adversely affect United States workers is not arbitrary, capricious, or manifestly contrary to Congress’s directive that foreign workers be imported only “if unemployed persons capable of performing [H-2B jobs] cannot be found in this country.” 8 U.S.C. § 1101(a)(15)(H)(ii)(b). First, this consideration is consistent with the H-2 program’s long statutory history. The House Report on the IRCA, which first created the H-2B category, explains:
The H-2 program, in one form or another, has been an element of U.S. immigration-policy since the 1940’s. The essential objective of the program, which the bill does not change, is to permit employers to utilize temporary foreign worker if domestic workers cannot be found and if it can be shown that the use of such foreign labor would not adversely affect the wages and working conditions of domestic workers 'similarly employed.
H.R. REP. 99-682, 50-51, 1986 U.S.C.C.A.N. 5649, 5654-55; see also Haggar Apparel,
Finally, the Court addresses Plaintiffs’ contention that the 2015 Program Rule and Wage Rule implement the no-adverse-effect requirement in an arbitrary and capricious manner. Plaintiffs argue that whether granting a particular H-2B visa will adversely affect United States workers must be determined on a case by case basis, and cannot reasonably be tied to “per se” rules such as the 2015 Program Rule’s prevailing wage formula.
The Court agrees with Defendants that Plaintiffs appear to misunderstand DHS and DOL’s comments about the prevailing wage formula’s relationship to the “60th percentile of the market wage.” The actual paragraph from the 2015 Program Rule that Plaintiffs cite to reads as follows:
The prevailing wage calculation represents a typical worker’s wage for a given type of work. The prevailing wage calculation is based on the current wages received by all workers in the occupation and area of intended employment. Based on OES data, DOL estimated that the weighted mean wage for the top five occupations in the H-2B ’ program reflects approximately the 60th percentile of the wage distribution of those occupations. Therefore, it is reasonable to assume that 40 percent of the corresponding workforce earns a wage that is equal to or greater than the calculated prevailing wage. Conversely, it would be reasonable to assume that 60 percent of the workers in corresponding employment earn less than the prevailing wage and would have their wages increased as a result of the interim final rule. Applying this -rate to DOL’s estimate- of the number of-workers covered by the corresponding employment provision would mean that 'the number of newly covered workers who would receive a wage increase is between '7,700 and 23,100.
80 Fed.Reg. 24094-05 (footnotes omitted). As is evident from the foregoing excerpt, there is no “per se” rule that “[i]f an employer offers a wage even a dime below the 60th percentile, it will not receive certification.” DHS and DOL were merely commenting on 'what .they anticipated would be the approximate effect of the prevailing wage formula on the wages of workers within certain industries.
For the foregoing reasons, Defendants’ Motion for Summary Judgment, EOF No. 24, is GRANTED, and Plaintiffs’ Motion for Summary Judgment, EOF No. 21, is DENIED. Defendants’ Motion to Strike, or in the Alternative, For Leave to File a Response to Plaintiffs’ Notice of Supplemental Authority, EOF No. 32, is DENIED, and Plaintiffs’ Status Report and Request to Expedite, EOF No. 34, is DE
Notes
. Also before the Court are Defendants’ Motion to Strike, or in the Alternative, For Leave to File' a Response to Plaintiffs’ Notice of Supplemental Authority, ECF No. 32, and Plaintiffs’ Status Report and Request to Expedite, ECF No. 34. Plaintiffs’ Motion to Expedite requests that the Court expedite its ruling on the parties' summary judgmént motions. As the Court is due to grant Defendants’ Motion for Summary Judgment, and deny Plaintiffs’ Motion for Summary Judgment, Plaintiffs' Motion to Expedite is denied as moot. Defendants' Motion seeks to strike or respond to Plaintiffs’ Notice of Supplemental Authority, ECF No. 31, which directs the Court’s attention to the recent Tenth Circuit case of G.H. Daniels III & Assocs., Inc. v. Perez,
. Consistent with its ruling in Bayou I, as upheld by the Eleventh .Circuit Court of Appeals,
. Plaintiffs also argue that they are entitled to injunctive relief, because the 2015 Program Rule and Wage Rule will cause them irreparable injury. As the Court explains infra, however, Plaintiffs fail to show that these rules are invalid, and therefore, Plaintiffs are not entitled to any relief.
. According to Plaintiffs’.Complaint, the regulations are arbitrary and capricious for the following reasons:
a. DOL lacked legislative rulemaking authority with respect to the H-2B program;
b. DHS lacked legislative rulemaking authority to require DOL to certify that a particular H-2B job would not have adverse effect;
c. DHS lacked legislative rulemaking au- , thority to give DOL a veto over its adjudication of H-2B petitions;
d. DHS lacked legislative rulemaking authority to promulgate rules for the Fair Labor Standard Act;
e. DHS’ and DOL’s definition of temporary is inconsistent with the definition of that term under the Immigration -and Nationality Act;
f. DOL failed to provide data or other evidence to support its programmatic changes;
g. DOL did not provide any evidence that any of the new provisions would avoid injuring U.S. employees;
h. DOL and DHS improperly increased the prevailing wage ostensibly to attract additional U.S. employees, without statutory authority;
i. DOL and DHS erected an irrebuttable presumption of adverse effect if an employer offers less than DHS’ and DOL’s prospective standards and therefore deprive employers of due process and a reasoned decision on their- individual certifications; ■ and
j.Such other arbitrary and capricious acts as the record reveals.
. When the Court refers to Plaintiff's Motion for Summary Judgment, it refers to both the Motion for Summary Judgment, ECF No. 21, and Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Summáry Judgment, ECF No. 22.
. If a plaintiff alleges a procedural injury— such as being denied the opportunity to comment on a proposed regulation — “plaintiff must allege that the agency violated certain procedural tules, that these rules protect a plaintiff’s concrete interests and that it is reasonably probable that the .challenged action will threaten these concrete interests.” Ouachita Watch League v. Jacobs,
. As is explained infra, the Court finds that individual, corporate plaintiff Superior Forestry has standing. Therefore, the Court does not reach the question'of whether .National Hispanic Landscape Alliance, National Association of Landscape Professionals, and Small and Seasonal Business Legal Center have associational standing.
. Plaintiffs also submitted a substantially similar declaration prepared by James Allen, the owner and president of Bayou Lawn & Landscape Service.
. On summary judgment, the Court must-take the facts set forth in the Plaintiffs’ declaration as true, see Lujan,
. However, .the Block court explained that the new rules were valid only as interim rules, pending notice and comment on a final version.
. Plaintiffs’ contention that DHS could have continued to process H-2B visa applications solely by reference to the standard outlined in 8 C.F.R. § 214.2(h)(6)(iii)(B) is untenable. Plaintiffs direct the Court to a single sentence, which provides that “[t]he petitioning employer shall consider available United States workers for the temporary services or labor, and shall offer terms and conditions of employment which are consistent with the nature of the occupation, activity, and industry in the United States.” § 214.2(h)(6)(iii)(B). However, DHS has acknowledged for decades that it does not have sufficient expertise in labor markets to determine, for instance, whether there are available United States workers to fill proposed H-2B job opportunities. See 80 Fed.Reg. 24047. Therefore, pursuant to Congress’s directive to consult with other agencies before issuing H-2B visas, 8 U.S.C. § 1184(c)(1), DHS relies on DOL’s labor market expertise to make such determinations. And as explained supra, recent litigation had- left DOL in no position to provide such guidance without new formal' regulations,
. Moreover, the Court observes that the 2015 Program Rule is an interim regulation drafted with the benefit of public comments submitted in relation to a substantially similar rule from 2012, 80 Fed.Reg. 24043, and that DHS and DOL have requested further comment from the public before making the 2015 Rule final, see 80 Fed.Reg. 24042.- A rule's interim status and the fact that its policies
. DHS and DOL did, however, rely ón a separate "good cause” exception to implement the Rule without observing the usual thirty-day waiting period, pursuant to 5 U.S.C. 553(d)(3). See '80 Fed.Reg. at 24152-53. Plaintiffs do not challenge this action,
. Plaintiffs and Defendants alternately cite to cases applying the Chevron doctrine and APA review in their arguments concerning DHS’s no-adverse-effect requirement. Under either standard, however, the analysis would be the same, as the second step of Chevron is the functional equivalent of arbitrary or capricious review under the APA. See Judulang v. Holder, — U.S.-,
. The Court also observes that considering foreign workers’ impact on United States workers’ wages and working conditions prevents employers from abusing the H-2B program to obtain cheap foreign labor at the expense of hiring United States workers who would otherwise be available for hire. For instance, if DHS and DOL could not consider the adverse effect on United States wages, there would be little to prevent employers from artificially lowering wage rates to disin-centivize domestic job applicants, then exploiting the absence of applicants to import H-2B workers who are willing to work for submarket wages. Thus, considering adverse effect prevents the H-2B program from distorting domestic labor markets. As the 2015 Wáge Rule explains:
A basic principle of supply-and-demand theory in economics is that in market economies, shortages signal that adjustments should be made to maintain equilibrium. Therefore, if employers experience a shortage of available workers in a particular region or occupation, compensation should rise as needed to attract workers. Market signals such as labor shortages that would normally drive wages up may become distorted by the availability of foreign workers for certain occupations, thus preventing the optimal allocation of labor in the market and dampening increased compensation that should result from the shortage. In enacting the foreign worker programs, generally, Congress has recognized the potential for market distortion by requiring in labor certification programs generally that the availability of foreign workers must not adversely affect the wages and working conditions of U.S. workers. See, e.g,, 8 U.S.C. 1182(a)(5)(A)(i)(II), INA section 212(a)(5)(A)(i)(II); 8 U.S.C. 1188(a)(1)(B), INA section 218(a)(1)(B). In its long-standing regulations, DHS has required this showing for the H-2B program.' See, e.g., 8 CFR214.2(h)(6)(iii)(A).
80 Fed.Reg. 24158-59.
. Plaintiffs also attack the 2015 Program ‘Rule and Wage Rule's "three-fourths guarantee,” which requires employers to offer its H-2B workers employment for at least three fourths of the workdays in each 12-week period. However, issues are ripe for judicial re