 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 25, 2014               Decided June 13, 2014

                        No. 13-5118

          REYMUNDO ZACARIAS MENDOZA, ET AL.,
                    APPELLANTS

            ALFREDO CONOVILCA MATAMOROS,
                      APPELLEE

                              v.

 THOMAS E. PEREZ, IN HIS OFFICIAL CAPACITY AS SECRETARY
  OF THE UNITED STATES DEPARTMENT OF LABOR, ET AL.,
                        APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:11-cv-01790)


    Julie A. Murray argued the cause for appellants. With
her on the briefs were Michael T. Kirkpatrick and Edward J.
Tuddenham.

    Michelle R. LaPointe was on the brief for amici curiae
The Southern Poverty Law Center, et al. in support of
appellants.

     Craig A. Defoe, Trial Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
                               2
were Stuart F. Delery, Assistant Attorney General, and David
J. Kline, Director. Geoffrey Forney, Senior Litigation
Counsel, entered an appearance.

     Edwin B. Swan, pro hac vice, argued the cause for
intervenors. On the brief was Carl W. Hampe.

    Before: TATEL, BROWN, and MILLETT, Circuit Judges.

    Opinion for the Court by Circuit Judge BROWN.

     BROWN, Circuit Judge: The Immigration and Nationality
Act creates a temporary foreign worker visa program that
allows employers to hire foreign workers when there are not
enough qualified and available American workers to fill open
jobs. The Department of Labor is tasked with administering
the visa program to protect the wages and working conditions
of U.S. workers. In August 2011, the Department updated the
special procedures that establish the minimum wages and
working conditions employers must offer U.S. sheepherders,
goatherders, and open-range (cattle) herders before hiring
foreign herders.

     The plaintiffs in this action are U.S. workers experienced
in herding. Although the plaintiffs would prefer to work as
herders, they have been forced out of the industry by the
substandard wages and working conditions they attribute to
the easy availability of foreign herders. The plaintiffs paint a
portrait of agency capture, suggesting the Department has,
without giving herders or their representatives an opportunity
to be heard, administered the temporary worker visa program
in a way that gives herding operations access to inexpensive
foreign labor without protecting U.S. workers.
                               3
     The plaintiffs, all of whom had left their herding jobs
sometime prior to August 2011, filed this action alleging the
Department of Labor violated the Administrative Procedure
Act by issuing the special procedures without notice and
comment. The Mountain Plains Agricultural Services and the
Western Range Association—two groups representing
employers in the herding industry—intervened on the side of
the government. The intervenors filed a motion to dismiss for
lack of jurisdiction and all the parties filed cross-motions for
summary judgment in the district court. The district court
granted the motion to dismiss, holding the plaintiffs lacked
Article III and prudential standing. We reverse the judgment
of the district court.

                               I

     The H-2A visa program—created by the Immigration and
Nationality Act of 1952 (INA) and amended by the
Immigration Reform and Control Act of 1986—permits
employers to hire foreign workers to perform temporary
agricultural work in the United States. An employer seeking
to hire H-2A foreign workers must first seek certification
from the Department of Labor that (1) there are not sufficient
qualified and willing U.S. workers to fill open positions and
(2) hiring foreign workers will not adversely affect the wages
and working conditions of similarly employed U.S. workers.
8 U.S.C. § 1188(a)(1). Only after obtaining the Department
of Labor certification may the employer petition United States
Citizenship and Immigration Services to classify a specific
foreign worker as an H-2A temporary worker.

     The Department of Labor has adopted regulations by
notice-and-comment rulemaking that govern the H-2A
certification process. The regulations were most recently
amended, again through notice-and-comment procedures, in
                             4
2010. Through those regulations, the Department sets
minimum terms and conditions employers must offer workers
to determine the availability of American workers to fill
employers’ jobs. See 20 C.F.R. §§ 655.120–655.122. The
regulations also establish procedures for employers seeking
H-2A certification to advertise open positions. See 20 C.F.R.
§§ 655.150–655.158. Qualified U.S. workers responding to
these job offers must be given priority over foreign workers.
See 20 C.F.R. § 655.135(d). Even after an employer’s H-2A
application is approved and the employer hires foreign
laborers, the employer must continue to provide its American
and foreign workers the minimum wages and working
conditions laid out in the regulations to ensure the
employment of foreign workers does not adversely affect the
terms of employment of similarly employed American
workers. 20 C.F.R. § 655.122(a).

     Employers seeking H-2A certification are required to pay
the higher of the Adverse Effect Wage Rate (AEWR), the
prevailing wage, or the legal minimum wage. 20 C.F.R.
§ 655.120(a). The AEWR is a specially calculated wage
based on the Department of Agriculture’s Farm Labor Survey,
which approximates what the prevailing wage would be if not
for the hiring of foreign workers. See Temporary Agricultural
Employment of H-2A Aliens in the United States, 75 Fed.
Reg. 6884, 6891–93 (Feb. 12, 2010). Any employer-provided
housing must meet standards set by the Occupational Safety
and Health Administration. 20 C.F.R. § 655.122(d).

     Although the same requirements generally apply to
employers seeking H-2A certification for workers in any
agricultural occupation, the H-2A regulations allow the
Administrator of the Office of Foreign Labor Certification to
create special procedures for processing certain H-2A
applications. 20 C.F.R. §§ 655.102, 655.120(a). This
                                5
“special procedures” exception predated, and was continued
in, the 2010 version of the H-2A regulations.

     In 2011, the Department of Labor issued two Training
and Employment Guidance Letters (TEGLs) providing special
procedures for certain H-2A certifications. It published the
TEGLs in the Federal Register without having gone through
Administrative Procedure Act (APA) notice and comment
procedures. See 5 U.S.C. § 553. TEGL No. 15-06 establishes
special procedures for the certification process for
cattleherders.     TEGL No. 15-06, Change 1, Special
Procedures: Labor Certification Process for Occupations
Involved in the Open Range Production of Livestock Under
the H-2A Program, 76 Fed. Reg. 47,243 (Aug. 4, 2011).
TEGL No. 32-10 outlines special procedures for employers
engaged in sheepherding and goatherding operations. TEGL
No. 32-10, Special Procedures: Labor Certification Process
for Employers Engaged in Sheepherding and Goatherding
Occupations Under the H-2A Program, 76 Fed. Reg. 47,256
(Aug. 4, 2011).         The 2011 TEGLs update special
procedures—also issued without notice and comment—that
had long been in place for employers seeking H-2A
certification in these occupations. 1 The TEGLs reflect the
Department of Labor’s belief that the unique occupational
characteristics of herding—including spending extended
periods in isolated areas and being on call twenty-four hours a
day, seven days a week to protect livestock—make special H-
2A procedures necessary. See TEGL No. 32-10, 76 Fed. Reg.
at 47,256.



1
  Although the 2011 TEGLs continued many of the policies in
effect under the prior special procedures, they also made a number
of changes to those procedures, which we discuss in Part III below.
                                 6
     Compared to the general H-2A regulations applicable to
most agricultural employers, the TEGLs establish
significantly different procedures for herder employers
seeking H-2A certification. Among other differences, the
TEGLs impose different minimum wage requirements and
provide lower standards for employer-provided housing.
Compare 20 C.F.R. § 655.120(a), with TEGL No. 15-06, 76
Fed. Reg. at 47,244–45, and TEGL No. 32-10, 76 Fed. Reg.
at 47,257–58; 20 C.F.R. § 655.122(d)(1)(i), and 29 C.F.R.
§ 1910.142, with TEGL No. 15-06, 76 Fed. Reg. at 47,246–
47.

     The plaintiffs in this action have substantial herding
experience. 2 Each originally came to the United States as an
H-2A herder, but left his job due to poor or abusive working
conditions.       The plaintiffs currently have a lawful
immigration status and are authorized to work in the United
States, thus qualifying as U.S. workers under the INA and H-
2A regulations. See 20 C.F.R. § 655.103(b). The plaintiffs
have all submitted affidavits declaring they are qualified and
available to work as herders. See J.A. 45–57. However, the
plaintiffs state they are deterred from accepting herding jobs
because of poor wages and working conditions, which they
attribute to the lax standards established by the TEGLs and
prior special procedures. They claim the Department of
Labor has, without protecting U.S. workers, allowed
employers easy access to a large supply of foreign herders.
None of the plaintiffs has worked as a herder since, at least,
May 2011. They aver they would prefer to work as herders,
but they have not heard of any herding jobs offering decent
wages and working conditions. See id.
2
 Only three plaintiffs are party to this appeal. A fourth plaintiff,
Alfredo Matamoros, participated in the district court proceedings
but did not appeal.
                                7

     The plaintiffs brought this action in October 2011. They
allege the TEGLs constituted “rule making” within the
meaning of the Administrative Procedure Act, 5 U.S.C. § 553,
the TEGLs were subject to notice and comment requirements,
and the Department of Labor violated the APA by issuing the
TEGLs without those procedures. They ask the court to set
aside the rules until they are adopted through notice-and-
comment rulemaking.

     The Mountain Plains Agricultural Services and the
Western Range Association intervened in the action.
Together, the intervenors’ member herding operations are
responsible for approximately sixty percent of the lamb and
wool production in the United States. Their members employ
1,500 to 2,000 foreign sheepherders at any given time, and
additional foreign cattle herders.        In their brief, the
intervenors state that virtually all of their members’ herder
employees are foreign workers admitted to the United States
under the H-2A program.

     The intervenors filed a motion to dismiss for lack of
jurisdiction in the district court. All parties filed cross-
motions for summary judgment. The district court granted the
intervenors’ motion to dismiss. The court concluded the
plaintiffs lack Article III standing because they have not
established a personal injury traceable to the disputed
regulations. Alternatively, the district court held the plaintiffs
lack prudential standing because they are not within the zone
of interests protected by the Immigration and Nationality Act.
Having granted the motion to dismiss for lack of jurisdiction,
the court did not reach the cross-motions for summary
judgment. The plaintiffs appealed.
                               8
     We begin our analysis by assuring ourselves of our own
jurisdiction.

                               II

     We review de novo a district court’s order dismissing a
claim under Federal Rule of Civil Procedure 12(b)(1) for lack
of subject matter jurisdiction. Info. Handling Servs., Inc. v.
Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C.
Cir. 2003). In evaluating plaintiffs’ standing at the motion to
dismiss stage “we must assume that the plaintiff[s] state[] a
valid legal claim and must accept the factual allegations in the
complaint as true.” Holistic Candlers and Consumers Ass’n
v. FDA, 664 F.3d 940, 943 (D.C. Cir. 2012). To establish
jurisdiction, the court need only find one plaintiff who has
standing. Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C. Cir.
2009).

     Article III of the Constitution limits the jurisdiction of
federal courts to “actual cases or controversies between
proper litigants.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d
658, 661 (D.C. Cir. 1996). To establish constitutional
standing, plaintiffs “must have suffered or be imminently
threatened with a concrete and particularized injury in fact
that is fairly traceable to the challenged action of the
defendant and likely to be redressed by a favorable judicial
decision.” Lexmark Int’l, Inc. v. Static Control Components,
Inc., 134 S. Ct. 1377, 1386 (2014); see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).

     The requirements for standing differ where, as here,
plaintiffs seek to enforce procedural (rather than substantive)
rights. When plaintiffs challenge an action taken without
required procedural safeguards, they must establish the
agency action threatens their concrete interest. Fla. Audubon
                                  9
Soc’y, 94 F.3d at 664. It is not enough to assert “a mere
general interest in the alleged procedural violation common to
all members of the public.” Id. Once that threshold is
satisfied, the normal standards for immediacy and
redressability are relaxed. Lujan, 504 U.S. at 572 n.7.
Plaintiffs need not demonstrate that but for the procedural
violation the agency action would have been different. Ctr.
for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1160
(D.C. Cir. 2005). Nor need they establish that correcting the
procedural violation would necessarily alter the final effect of
the agency’s action on the plaintiffs’ interest. Id. Rather, if
the plaintiffs can “demonstrate a causal relationship between
the final agency action and the alleged injuries,” the court will
“assume[] the causal relationship between the procedural
defect and the final agency action.” Id. 3

     In challenging the Department of Labor’s 2011 TEGLs,
the plaintiffs assert procedural rights under the APA. To
establish standing, they must demonstrate the guidelines
contained in the TEGLs cause them some personal injury—
such as increased competition or lost opportunity.

     The competitor standing doctrine recognizes “parties
suffer constitutional injury in fact when agencies lift
regulatory restrictions on their competitors or otherwise allow
increased competition.” La. Energy and Power Auth. v.
FERC, 141 F.3d 364, 367 (D.C. Cir. 1998); see also Sherley

3
  In Lujan, the Supreme Court gave the example that “one living
adjacent to the site for proposed construction of a federally licensed
dam has standing to challenge the licensing agency’s failure to
prepare an environmental impact statement, even though he cannot
establish with any certainty that the statement will cause the license
to be withheld or altered, and even though the dam will not be
completed for many years.” Lujan, 504 U.S. at 572 n.7.
                              10
v. Sebelius, 610 F.3d 69, 72–73 (D.C. Cir. 2010). In an
analogous case involving foreign labor, the Ninth Circuit held
an American workers’ union had standing to challenge an
Immigration and Naturalization Service decision permitting
Canadian crane operators to work in the United States without
completing the usual foreign labor certification procedure.
Int’l Longshoremen’s & Warehousemen’s Union v. Meese,
891 F.2d 1374, 1376, 1379 (9th Cir. 1989). The court held
the union suffered injury in fact because the agency’s action
caused union members increased competition for jobs in their
industry. Id. at 1379. See also Int’l Union of Bricklayers &
Allied Craftsmen v. Meese, 761 F.2d 798, 802–03 (D.C. Cir.
1985) (“In this instance, the injury of which appellants
complain is not abstract. On the contrary, they allege . . . the
INS is allowing aliens into the country to perform work which
would otherwise likely go to union members. They charge
that those alien workers represent competition which
appellants would not face if the Government followed the
procedures required by law.”); Ass’n of Data Processing Serv.
Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970).

     Thus, an individual in the labor market for open-range
herding jobs would have standing to challenge Department of
Labor rules that lead to an increased supply of labor—and
thus competition—in that market. But the intervenors argue
the 2011 TEGLs do not depress wages or worsen working
conditions for U.S. herders. Rather, they claim the TEGLs
fulfill the Department’s statutory responsibility to create H-
2A certification procedures that ensure foreign herders are
only admitted to the country if there are not sufficient U.S.
workers to perform the labor required, and establish standards
to prevent the admission of foreign herders from “adversely
affect[ing] the wages and working conditions of workers in
the United States similarly employed.” 8 U.S.C. § 1188(a)(1).
Essentially, the intervenors argue the TEGLs are substantively
                              11
correct insofar as they comply with the relevant provisions of
the INA. But, particularly in a procedural rights case,
whether the TEGLs would withstand a substantive challenge
is not the relevant question for the purpose of determining
whether they cause injury to the plaintiffs’ concrete interests.
Rather, an examination of the alternatives to the TEGLs
demonstrates the issuance of those rules injured American
herders.

     Without the special procedures contained in the TEGLs,
open-range employers would be bound by the general H-2A
regulations. See, e.g., 20 C.F.R. § 655.120 (establishing the
wage rate employers seeking to hire foreign labor must offer,
“except where a special procedure is approved for an
occupation or specific class of agricultural employment”);
TEGL No. 15-06, 76 Fed. Reg. at 47,244 (describing TEGL
as outlining special procedures that preempt the regular H-2A
regulations contained in 20 C.F.R. part 655); id. (“The
Department is continuing a special variance to the offered
wage rate requirements contained at 20 CFR 655.120(a).”);
TEGL No. 32-10, 76 Fed. Reg. 47,256, 47,257 (Aug. 4, 2011)
(same). Under the general H-2A regulations, employers
wishing to hire foreign laborers would be required to pay
herders the Adverse Effect Wage Rate, which in 2011 ranged
from $8.97 per hour to $12.01 per hour, depending on the
state. 2011 Adverse Effect Wage Rates, 76 Fed. Reg. 11,286,
11,286 (Mar. 1, 2011). Under the special procedures set forth
in the TEGLs, however, employers need only pay herders the
prevailing wage rate, which in 2011 was $875 per month plus
room and board for cattleherders and from $750 to $1,422.52
per month plus room and board for sheepherders and
goatherders, depending on the state. See Agricultural Online
Wage Library, U.S. DEP’T LABOR, EMP. & TRAINING ADMIN.,
http://www.foreignlaborcert.doleta.gov/aowl.cfm (last visited
June 3, 2014). A sheepherder in Colorado paid the prevailing
                                12
wage and working a 40-hour week would make less than
$4.69 per hour plus room and board—well below the $10.48
AEWR in Colorado. 4 The TEGLs also permit lower
standards for herder housing than the general H-2A
regulations authorize for employer-provided housing to other
agricultural workers. Compare, e.g., 20 C.F.R. § 655.122(d)
(housing provided by H-2A employers generally must meet
OSHA standards set forth at 29 C.F.R. § 1910.142), and 29
C.F.R. § 1910.142(b) (sleeping rooms must have at least 50
square feet of floor space per occupant and seven-foot
ceilings; living quarters must include windows “the total of
which may not be less than one-tenth of the floor area”; wood
floors must be elevated at least one foot above ground level to
prevent dampness), with TEGL No. 15-06, 76 Fed. Reg. at
47,246–47 (lacking similar requirements for housing provided
to open-range herders), and TEGL No. 32-10, 76 Fed. Reg. at
47,261–62 (same regarding sheepherders and goatherders).


4
  Of course, sheepherders are actually on call twenty-four hours per
day, seven days per week. TEGL No. 32-10, 76 Fed. Reg. at
47,259. Even after accounting for room and board, herders making
the prevailing wage earn far less than other agricultural workers
being paid the AEWR. Although not all employers are required to
provide their agricultural workers room and board under the H-2A
program, employers are required to provide housing at no cost if the
workers are not reasonably able to return to their residence within
the same day—as would ordinarily be the case for herders who
often work far from their home and may need to be on call to tend
to livestock at all hours. 20 C.F.R. § 655.122 (d). The general H-
2A regulations require employers to provide their employees either
kitchen facilities to enable the workers to prepare their own meals,
or three meals a day. 20 C.F.R. § 655.122(g). If an employer
chooses to provide its workers with meals, it may charge its
workers $10.73 per day for the meals. 20 C.F.R. § 655.173(a); 76
Fed. Reg. 11,286, 11,287 (Mar. 1, 2011).
                               13
     The 2011 TEGLs also differ in significant and adverse
ways from the prior special procedures governing herding
employers. See infra Part III. Thus, the TEGLs adversely
affect herders by lowering wages and worsening working
conditions, whether they are compared to the alternative of
eliminating special procedures for herders altogether or
retaining the pre-2011 special procedures. 5

     It does not matter if defendants are correct in suggesting
the TEGLs comply with the INA’s requirement that use of
foreign labor not adversely affect American workers’ wages
and working conditions. We may ignore the merits of the
TEGLs’ guidance. Plaintiffs asserting a procedural rights
challenge need not show the agency action would have been
different had it been consummated in a procedurally valid
manner—the courts will assume this portion of the causal
link. Ctr. for Law & Educ., 396 F.3d at 1160. Rather,
plaintiffs simply need to show the agency action affects their
concrete interests in a personal way. In other words, the
intervenors’ argument that the agency action was lawful or
correct on the merits—and therefore that it did not injure the
plaintiffs—is substantially the same as arguing the omitted
procedure would not have affected the agency’s decision.
This is precisely the argument a defendant cannot make in a
procedural rights challenge. Cf. Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)

5
  The intervenors point to a list of available jobs they claim pay
significantly higher wages than required under the standards
contained in the 2011 TEGLs. See J.A. 58–60. But even if there
are job opportunities for herders that pay above the minimum wage
required by the TEGLs, that says nothing about the working
conditions of those jobs. Moreover, it gives no indication of what
the offered wage rate might be if it were not for the Department’s
allegedly lax guidelines for the admission of foreign labor.
                               14
(“The relevant showing for purposes of Article III
standing . . . is not injury to the environment but injury to the
plaintiff. To insist upon the former rather than the latter as
part of the standing inquiry . . . is to raise the standing hurdle
higher than the necessary showing for success on the merits in
an action alleging noncompliance with a[] [discharge]
permit.”).

     Having concluded individuals competing in the herder
labor market have standing to challenge the TEGLs, we need
only determine whether any of the plaintiffs in this action is a
member of that market. A party seeking to establish standing
on the basis of the competitor standing doctrine “must
demonstrate that it is a direct and current competitor whose
bottom line may be adversely affected by the challenged
government action.” KERM, Inc. v. FCC, 353 F.3d 57, 60
(D.C. Cir. 2004). The district court concluded “none of [the
plaintiffs] has been a competitor in the open-range herding
industry since May 2011.” Mendoza v. Solis, 924 F. Supp. 2d
307, 319 (D.D.C. 2013). We believe the district court took
too narrow a view of what qualifies as participating in the
herding labor market.

     The plaintiffs have averred they are experienced and
qualified herders. See Mendoza Aff. ¶ 5, J.A. 46 (worked as a
sheepherder for about 14 months); Castro Aff. ¶¶ 2, 3, J.A.
51; Catalan Aff. ¶¶ 2, 3, J.A. 55–56. They state they are
interested in working as herders and herding is their preferred
occupation. See Mendoza Aff. ¶¶ 9, 10, J.A. 47 (“Herding is
my preferred occupation. In the city I get board [sic] when I
am not working and I miss working with animals.”); Castro
Aff. ¶¶ 7, 9, J.A. 52; Catalan Aff. ¶¶ 8, 9, J.A. 56–57.
Although the plaintiffs have not averred they have applied for
specific herding jobs since the 2011 TEGLs went into effect,
their affidavits suggest they have monitored the labor market
                                15
for acceptable positions. See Castro Aff. ¶ 8, J.A. 52 (“After
leaving the ranch, I did find out about another job as a
sheepherder in Washington. But after talking to one of the
former workers, I found out that the conditions were the same
as the ranch I left, so I did not pursue the job.”); Catalan Aff.
¶ 10, J.A. 57 (“I have met sheepherders here in Washington
and they have the same bad conditions that I had when I
worked as an H-2A herder with cattle. . . .”). At least one of
the plaintiffs, Mendoza, has been repeatedly offered a job as a
herder, which he declined due to the poor wages and working
conditions. Mendoza Aff. ¶ 13, J.A. 48 (“My employer from
Henefer, UT calls me every once in a while to ask if I will
return to work for him but he doesn’t offer better pay so I
don’t take his offer.”).

     Even though the plaintiffs have not worked as herders
since 2011 and may not have applied for specific herder jobs
since that time, they have affirmed their desire to work as
herders and stated their intention to do so if wages and
working conditions improve. See Mendoza Aff. ¶ 10, J.A. 47
(“I want to work as a herder again.”); id. ¶ 11, J.A. 47 (“I
would be willing to work as a herder if the employer
paid . . . .”); Castro Aff. ¶¶ 7, 9, J.A. 52; Catalan Aff. ¶¶ 8, 9,
J.A. 56–57 (“I would take an open range herding job.”). The
plaintiffs are not removed from the herder labor market
simply because they do not currently work as herders and
have not filled out formal job applications. A person can
involve himself in a job market by means other than
submitting formal applications. Job searches are not such
rigid processes. The plaintiffs continue to monitor the herder
job market with the intention of applying for work in the
industry if conditions improve. Mendoza, in particular, has
demonstrated a substantial likelihood he would be able to find
a job as a herder since he has been repeatedly offered jobs by
a former employer.             The plaintiffs’ affidavits thus
                              16
demonstrate their informal involvement in the labor market.
And because the plaintiffs retained ties to the industry, it was
reasonable for them to conclude that formally applying for
jobs would be futile when they would not accept a job
offering the prevailing wage and working conditions. See
Castro Aff. ¶ 8, J.A. 52 (stating he found out about a
sheepherder position in Washington but did not pursue the job
after finding out the conditions were the same as the ranch he
had previously left).

     The standing inquiry here is similar to that in Friends of
the Earth. In that case, an environmental group asserted
standing to sue under the Clean Water Act a company
allegedly discharging pollutants into the North Tyger River.
Friends of the Earth, Inc., 528 U.S. at 175–79. The Supreme
Court held members of the plaintiff organizations had
demonstrated sufficient injury to establish standing. Id. at
180–86. One of the plaintiffs’ members had averred “he
would like to fish, camp, swim, and picnic in and near the
river . . . as he did when he was a teenager, but would not do
so because he was concerned that the water was polluted by
Laidlaw’s discharges.” Id. at 181–82. Other members stated
they used to picnic, camp, hike, birdwatch, boat, and wade
along the river but they no longer engaged in these activities
because of concern about harmful effects from discharged
pollutants. Id. at 182–83. The Court held these sworn
statements adequately documented injury in fact. Id. at 183.

     Like the affidavits discussed in Friends of the Earth, the
plaintiffs’ affidavits regarding their interest in working as
herders present more than “general averments” and
“conclusory allegations.” Id. at 184. The plaintiffs have
attested to specific experience that qualifies them to work as
herders; the particular working conditions that led them to
leave the industry; the specific wages and conditions they
                                 17
would require to accept new employment as workers; the
manner in which they have kept abreast of conditions in the
industry; and, at least with regard to Mendoza, a specific
possible avenue for obtaining reemployment as a herder. 6

     Finally with regard to plaintiffs’ constitutional standing,
the intervenors argue the plaintiffs do not have standing
because their injury was not caused by the 2011 TEGLs, but
by policies that pre-existed those guidelines. But the fact that
previous policies may have caused the plaintiffs similar harm
does not mean the 2011 TEGLs do not cause the plaintiffs
injury in fact. Transportation Workers Union of America,
AFL-CIO v. Transportation Security Administration, 492 F.3d

6
  The plaintiffs do not need to apply for and be offered positions
they have a reasonable basis for knowing will provide substandard
compensation and conditions just to maintain standing to bring this
suit. To create such a standard would require plaintiffs “to engage
in a futile act.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098,
1102 (D.C. Cir. 2005) (holding plaintiff had standing to challenge a
Parole Commission rule preventing him from having a
representative at his parole hearing despite the fact he had not
obtained a representative who would have been ready and able to
appear on his behalf). The plaintiffs’ members in Friends of the
Earth had standing even though they did not continue to hike,
swim, and boat along the North Tyger River despite the pollution.
See Friends of the Earth, Inc., 528 U.S. at 182–83 (holding
members wished to engage in recreational activities but refrained
from doing so because of the pollution). Cf. Sporhase v. Neb. ex
rel. Douglas, 458 U.S. 941, 944 & n.2 (1982) (holding appellants
had standing to challenge Nebraska law requiring them to obtain
permit before transferring water across the state border even though
they had never applied for a permit because, under the challenged
law, the permit would not have been granted). We do not generally
require plaintiffs to engage in a futile act to prove the sincerity of
their injury.
                               18
471 (D.C. Cir. 2007)—the case on which the intervenors rely
for this argument—is inapposite. In Transportation Workers
Union, we considered a procedural challenge to TSA’s Legal
Guidance defining the term “conviction.” Id. at 472.
Employees “convicted” of listed crimes were prohibited from
working in sensitive areas of an airport. Id. at 473. In 2003,
TSA published a Legal Guidance defining the term, and in
2004 the agency updated the guidance, making slight changes.
Id. After a union worker was suspended from his job, the
union filed an action challenging the issuance of the 2004
Guidance—specifically, the procedural wrong of switching
from the 2003 to the 2004 guidance without notice and
comment. Id. at 474–75. The plaintiff conceded the 2003
Guidance was properly issued, and we determined the worker
would have been ineligible for his job under either the 2003
or 2004 guidance. Id. at 475–77. Therefore, we held the
union lacked standing because of “the particular claim” it
advanced—the union was challenging the change from the
2003 to 2004 guidance and this change did not cause the
suspension. Id.

     This case presents a different type of claim. Plaintiffs are
not challenging the 2011 TEGLs on the basis that they
impermissibly changed a valid previous policy. Rather,
plaintiffs are arguing the 2011 TEGLs, like all prior
Department of Labor guidance on the matter, were
implemented without the required notice and comment
procedures. In the type of case now before us, where the
plaintiffs do not concede that prior procedures were validly
promulgated, the fact that previous rules may also have
caused the plaintiffs injury does not break the causal link
between the rules they now challenge and the asserted injury.
The only relevant inquiry is whether the 2011 TEGLs cause
injury—and we have concluded they do. Put another way, the
Department of Labor’s previous failure to comply with the
                                  19
notice and comment requirements of the APA cannot excuse
its later violation of those requirements, nor render the latter
violation unreviewable. 7

      To conclude, we are satisfied the plaintiffs have Article
III standing to challenge the Department’s failure to engage in
the notice and comment procedures required by the APA.
Under the competitor standing doctrine, the TEGLs affect the
concrete interests of individuals seeking work as herders. The
plaintiffs have established they are seeking work as herders
and would accept such work if provided the wages and
working conditions they contend the law requires. 8 Finally,
because the plaintiffs assert a procedural violation, we can
assume the causal link between that procedural violation and
the substantive outcome of the agency action. 9

7
  This discussion assumes the existence of the previous rules does
not result in the plaintiffs’ claims being barred by the statute of
limitations, an issue we discuss below.
8
 Because we find the plaintiffs are willing and available to work as
herders, we need not consider plaintiffs’ alternative argument that
plaintiff Catalan has standing because the wages he receives in his
current job as a ranch hand are depressed by the influx of foreign
herders.
9
  Having concluded plaintiffs sufficiently demonstrated standing
under the standards applicable at the motion to dismiss stage, we
have no trouble concluding they also meet their burden under the
applicable standard at the summary judgment stage. See Lujan, 504
U.S. at 561 (plaintiff must establish the elements of standing in a
different manner depending on the stage of litigation). The relevant
facts—including, for instance, plaintiffs’ experience working as
open-range herders and that Mendoza has received job offers to
return to herding—are undisputed. Rather, defendants challenge
the sufficiency of those facts to meet the legal standard for injury in
fact, causation, and redressability. The standard for resolution of
                                 20

                                 III

     Our conclusion that the plaintiffs meet the constitutional
requirements for standing does not end our discussion of the
plaintiffs’ right to pursue this action. We must also inquire
whether the plaintiffs fall within the class of persons whom
Congress has authorized to sue under the Administrative
Procedure Act. To do so, we ask whether “a plaintiff’s
grievance . . . arguably fall[s] within the zone of interests
protected or regulated by the statutory provision or
constitutional guarantee invoked in the suit.” Bennett v.
Spear, 520 U.S. 154, 162 (1997). Following the lead of the
Supreme Court, see, e.g., id. at 163, we have previously
referred to this requirement as one of “prudential standing”—
and so the district court did in its opinion. Recently, however,
the Supreme Court has clarified that “‘prudential standing’ is
a misnomer” because the zone-of-interests analysis does not
rest on prudential considerations, but rather asks the statutory
question of whether “a legislatively conferred cause of action
encompasses a particular plaintiff’s claim.” Lexmark Int’l,
Inc., 134 S. Ct. at 1386–88 (quoting Ass’n of Battery
Recyclers, Inc. v. EPA, 716 F.3d 667, 675–76 (D.C. Cir.
2013) (Silberman, J., concurring)). 10

these legal arguments is the same at the motion to dismiss stage as
it is on a motion for summary judgment. Furthermore, as is evident
from our discussion, both we and the district court have considered
relevant facts found outside of the complaint, as we are permitted to
do on a Rule 12(b)(1) motion to dismiss for lack of jurisdiction.
Coal. For Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003).
10
  Lexmark International was decided subsequent to oral argument
in this case. Because it calls for us to reframe what the district
court described as a “prudential standing” inquiry, the case would
                                 21

     Although the plaintiffs here assert a cause of action under
the APA, in considering whether plaintiffs are authorized to
sue under that law we look to whether they fall within the
zone of interests sought to be protected by the substantive
statute pursuant to which the Department of Labor acted: the
INA. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345–
48 (1984). Nevertheless, we apply the zone-of-interests test
in a manner consistent with “Congress’s evident intent when
enacting the APA to make agency action presumptively
reviewable.”          Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210
(2012). “We do not require any indication of congressional
purpose to benefit the would-be plaintiff.” Id. Rather, a
plaintiff falls outside the group to whom Congress granted a
cause of action only when its interests “are so marginally
related to or inconsistent with the purposes implicit in the
statute that it cannot reasonably be assumed that Congress
intended to permit the suit.” Clarke v. Sec. Indus. Ass’n, 479
U.S. 388, 399 (1987). The zone-of-interests test is not a
demanding one. Id.

     The interests protected by the relevant provision of the
Immigration and Nationality Act are plain. The INA requires
a petition to admit aliens as H-2A workers only be approved
if the petitioner has received certification from the Secretary
of Labor that:

    (A) there are not sufficient workers who are able, willing,
    and qualified, and who will be available at the time and

have been the proper subject of a letter from the parties pursuant to
Federal Rule of Appellate Procedure 28(j). We urge counsel to
diligently keep us apprised of relevant legal developments that
occur even after oral argument.
                              22
    place needed, to perform the labor or services involved in
    the petition, and

    (B) the employment of the alien in such labor or services
    will not adversely affect the wages and working
    conditions of workers in the United States similarly
    employed.

8 U.S.C. § 1188(a)(1). The clear intent of this provision is to
protect American workers from the deleterious effects the
employment of foreign labor might have on domestic wages
and working conditions.         In particular, Congress was
concerned about (1) the American workers who would
otherwise perform the labor that might be given to foreign
workers, and (2) American workers in similar employment
whose wages and working conditions could be adversely
affected by the employment of foreign laborers. See Int’l
Union of Bricklayers & Allied Craftsmen, 761 F.2d at 804–05
(“The legislative history of [the INA] (as initially passed)
clearly evinces a congressional purpose to keep American
labor stalwart in the face of foreign competition in the United
States . . . .”); Int’l Longshoremen’s & Warehousemen’s
Union, 891 F.2d at 1379 (“A primary purpose of the
immigration laws, with their quotas and certification
procedures, is to protect American laborers.”).

     The district court found the plaintiffs did not fall within
the zone of interests of the Immigration and Nationality Act
for the same reasons it found the plaintiffs lacked Article III
standing—the plaintiffs were not willing and available to
work as herders. But for the same reasons we hold the
plaintiffs have established Article III standing, we also hold
they do fall within the zone of interests of the INA—the
plaintiffs are American workers who would work as herders.
They allege the Department of Labor’s lax certification
                               23
standards for H-2A visas for herders make it more difficult for
them to find herding jobs with decent wages and working
conditions. The plaintiffs’ interests are squarely “within the
zone    of       interests   protected . . . by  the    statutory
provision . . . invoked in the suit.” Bennett, 520 U.S. at 162.

     The district court held that because the plaintiffs were
unwilling to work at current herder wages they are not
“willing” and “available” workers within the meaning of 8
U.S.C. § 1188(a)(1)(A). See Mendoza, 924 F. Supp. 2d at
322–23. But such a standard would force would-be plaintiffs
to accept substandard wages and working conditions—
precisely the situation the INA seeks to prevent—to prove
their “willingness” and “availability,” and to establish
themselves as within the Act’s zone of interests. This cannot
be the result Congress intended. See 20 C.F.R. § 655.0(a)(2)
(“U.S. workers cannot be expected to accept employment
under conditions below the established minimum levels.”); id.
(“Before any factual determination can be made concerning
the availability of U.S. workers to perform particular job
opportunities . . . the minimum level of wages . . . and
conditions for the particular job opportunities, below which
similarly employed U.S. workers would be adversely affected,
must be established.”). Rather, workers displaced by lax visa
policies from jobs they otherwise would hold fall within the
class of individuals whom the INA seeks to protect. For the
reasons explained above, the plaintiffs’ affidavits establish
they are “able, willing, . . . qualified, and . . . available” to
work as herders. 8 U.S.C. § 1188(a)(1)(A). The plaintiffs fall
within the zone of interests of the INA and have a
legislatively conferred cause of action to raise their claim
regarding the Department of Labor’s administration of the H-
2A program as it regards herders.
                              24
                              IV

     Although we have concluded the plaintiffs have Article
III standing and statutory authorization to raise their claims,
we cannot yet proceed to the merits of this case. Subject
matter jurisdiction cannot be waived and federal courts have
“an independent obligation to assure [them]selves of
jurisdiction, even where the parties fail to challenge it.”
Floyd v. District of Columbia, 129 F.3d 152, 155 (D.C. Cir.
1997). After oral argument, we asked the parties to submit
supplemental briefing on the question of whether the
plaintiffs’ claims are barred by the statute of limitations. We
conclude they are not.

     Unless another statute provides otherwise, civil claims
against the United States—including those brought pursuant
to the APA—are subject to the statute of limitations contained
in 28 U.S.C. § 2401, which allows for civil actions against the
United States so long as “the complaint is filed within six
years after the right of action first accrues.” See Harris v.
FAA, 353 F.3d 1006, 1009 (D.C. Cir. 2004). Congress has
not adopted a special statute of limitations for the type of
claim the plaintiffs bring, so § 2401(a) is relevant here.
Although the defendants had not asserted the statute of
limitations defense until our request for supplemental
briefing, the statute of limitations contained in § 2401(a) is
not subject to waiver like the normal statute of limitations
affirmative defense is. We have long held § 2401(a) “creates
a jurisdictional condition attached to the government’s waiver
of sovereign immunity.” P & V Enters. v. U.S. Army Corps of
Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008). 11 A

11
   We have recently questioned the continuing viability of this
holding in light of recent Supreme Court decisions. See P & V
Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1027 & n.2
                                  25
jurisdictional statute of limitations cannot be waived by the
parties. We must determine when the plaintiffs’ right of
action first accrued.

     The APA makes reviewable “final agency action.” 5
U.S.C. § 704. A final agency action is “one by which rights
or obligations have been determined or from which legal
consequences will flow.” Bennett, 520 U.S. at 178. Because
an agency’s renewal of an earlier decision does not alter the
status quo, it does not restart the statute of limitations. See
Impro Prods., Inc. v. Block, 722 F.2d 845, 850 & n.9 (D.C.
Cir. 1983) (holding agency’s renewal of earlier decision—
periodic redistribution of reprints of articles allegedly
containing false information—did not restart statute of
limitations). Therefore, we must determine whether the 2011
TEGLs or their predecessors enacted a substantive change
that restarted the statute of limitations clock within the six
years prior to October 7, 2011 when the complaint was
filed. 12



(D.C. Cir. 2008); Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C.
Cir. 2007); Harris, 353 F.3d at 1013 n.7. However, because we
hold the plaintiffs filed this action within six years from the date
their claims accrued, we need not resolve this issue now.
12
   Alternatively, the reopener doctrine permits a plaintiff to bring an
otherwise-stale challenge where the agency “has undertaken a
serious, substantive reconsideration of the existing rule.” P & V
Enters., 516 F.3d at 1023–24. The reopener doctrine is employed
when an agency has considered substantively changing a rule but
ultimately declined to do so. We do not employ the doctrine here
because we find there was new agency action substantively
changing the special procedures within the six years prior to the
filing of the complaint.
                             26
     The policies contained in the 2011 TEGLs the plaintiffs
challenge were substantively changed in the six years prior to
the filing of the complaint. Although there had long existed
special procedures for handling H-2A visas for sheepherders
and goatherders, similar special procedures were only
implemented for open-range (cattle) herders in 2007. See
Foreign Labor Certification; Training and Employment
Guidance Letter No. 15-06, at 1 (Feb. 9, 2007), available at
http://wdr.doleta.gov/directives/attach/TEGL/TEGL15-06.pdf
(“establish[ing] special procedures as part of the H-2A labor
certification process for employers who desire to employ
temporary foreign workers in the United States for
occupations involved in the open range production of
livestock” (emphasis added)). The 2007 TEGL No. 15-06
had significant legal consequences for open-range herders and
their employers. We need not decide whether the 2011 TEGL
No. 15-06 substantively altered the policies of the 2007 TEGL
because the plaintiffs’ 2011 challenge to the agency action—
whether concluded in 2007 or 2011—was brought within the
six-year statute of limitations.

     The special procedures for H-2A certification for
sheepherders have a longer lineage. The 2011 TEGL No. 32-
10 rescinds and replaces procedures contained in the 2001
Field Memorandum No. 24-01. 13 Because the period for
challenges to the 2001 Field Memorandum has long passed,
we examine whether the 2011 sheepherder TEGL
substantively altered the 2001 policies, and thus constituted
final agency action sparking a new period for review.




13
   The 2001 Field Memorandum itself rescinded and replaced
procedures set out in a 1989 Field Memorandum.
                             27
     We conclude the 2011 TEGL contains substantive
changes to the 2001 procedures. Most notably, the 2001 Field
Memorandum required employers to offer sheepherders the
highest of the prevailing wage rate, a special monthly AEWR
set by the Department of Labor, or the legal minimum wage
rate. See Field Memorandum No. 24-01, Special Procedures:
Labor Certification for Sheepherders and Goatherders Under
the H-2A Program (Aug. 1, 2001), available at
http://www.foreignlaborcert.doleta.gov/fm/fm_24-01.htm
(“2001 Field Memorandum”); Special Procedures attached to
2001      Field     Memorandum          3,     available  at
http://www.foreignlaborcert.doleta.gov/fm/fm_24-01a.pdf
(“2001 Special Procedures”). The 2011 TEGL removes the
option for the Department to establish a special monthly
AEWR, thus allowing employers to pay the higher of only the
prevailing wage rate or the legal minimum wage rate. TEGL
No. 32-10, 76 Fed. Reg. at 47,257–58. As another example,
the 2011 TEGL exempts individual employers and employer
associations from the requirement—which is generally
applicable to other H-2A employers, see 20 C.F.R. § 655.151,
and which was applicable to herding associations under the
2001 Field Memorandum, see 2001 Special Procedures 8–9—
of placing job advertisements in newspapers. TEGL No. 32-
10, 76 Fed. Reg. at 47,260.

     The numerous alterations to the H-2A visa process and
minimum standards for sheepherders, at least in the aggregate,
are substantive changes constituting new agency action. The
2011 TEGLs altered the wages and working conditions H-2A
employers are required to offer American sheepherders, as
well as the availability of such jobs. Furthermore, the
contents of the sheepherder TEGL must stand or fall together;
they outline a single compensation package and set of
procedures to protect American workers. We cannot separate
policies untouched by the 2011 update from those
                              28
substantially altered by the TEGL.         Cf. MD/DC/DE
Broadcasters Ass’n v. FCC, 236 F.3d 13, 22 (D.C. Cir. 2001)
(“Whether the offending portion of a regulation is severable
depends upon the intent of the agency and upon whether the
remainder of the regulation could function sensibly without
the stricken provision.”).

     Because the open-range herder TEGL reflects special
procedures first introduced within the statute of limitations,
and because the sheepherder and goatherder TEGL
substantively alters the procedures previously in place, both
TEGLs are the product of final agency action. The TEGLs
meaningfully altered the rights and obligations of herders and
their employers. See Bennett, 520 U.S. at 178. The plaintiffs
properly filed their claims within six years of the final agency
action. The claims are not barred by the statute of limitations.

                               V

     Having concluded we have jurisdiction to hear this
action, we can finally turn to the merits of the plaintiffs’
claim. We do this even though the district court, dismissing
the action for lack of jurisdiction, never reached the merits.
Although our general practice in such a case is to remand to
the district court, we think it appropriate to resolve the issue
now. See WildEarth Guardians v. Jewell, 738 F.3d 298, 308
n.4 (D.C. Cir. 2013); Friends of Blackwater v. Salazar, 691
F.3d 428, 434 n.* (D.C. Cir. 2012). The plaintiffs and the
government fully briefed the issue before this court and
requested that, if we find the plaintiffs have standing, we
reach the merits of plaintiffs’ claims. We have considered the
full briefing the intervenors submitted to the district court
regarding the motions for summary judgment. The district
court has no comparative advantage in reviewing the agency
action for compliance with the notice and comment
                               29
requirements. An appeal from any district court decision after
remand is likely, and our review of the district court’s
decision would be de novo. See Roberts v. United States, 741
F.3d 152, 157–58 (D.C. Cir. 2014) (“We review the district
court’s grant of summary judgment de novo, which is to say
we review the administrative action directly, according no
particular deference to the judgment of the District Court.”).
As even the intervenors—who ask us to remand to the district
court—acknowledge, the merits of the plaintiffs’ claim
involve purely legal questions. Def.-Intervenors’ Mem. Supp.
Mot. Summ. J., Mendoza v. Solis, ECF No. 29-2, No. 1:11-cv-
1790 (D.D.C.). Moreover, the merits of this case are clear. A
remand to the district court would be a waste of judicial
resources.

     An agency is generally required by the APA to publish
notice of proposed rulemaking in the Federal Register and to
accept and consider public comments on its proposal. 5
U.S.C. § 553. The APA exempts from these procedural
requirements: (1) interpretative rules; (2) general statements
of policy; and (3) rules of agency organization, procedure, or
practice. Id. 14 This court has generally referred to the
category of rules to which the notice and comment
requirements do apply as “legislative rules” or, sometimes,
“substantive rules.” Cent. Tex. Tel. Co-op, Inc. v. FCC, 402
F.3d 205, 210 (D.C. Cir. 2005); U.S. Telecom Ass’n v. FCC,
400 F.3d 29, 34 (D.C. Cir. 2005).




14
  Defendants do not argue the TEGLs constitute general statements
of policy, so we do not address this exemption.
                              30
                              A

     The defendants argue the TEGLs are interpretative rules
exempt from notice and comment procedures.                 “An
‘interpretative rule’ describes the agency’s view of the
meaning of an existing statute or regulation.” Batterton v.
Marshall, 648 F.2d 694, 702 n.34 (D.C. Cir. 1980). The
court’s inquiry in distinguishing legislative rules from
interpretative rules “is whether the new rule effects a
substantive regulatory change to the statutory or regulatory
regime.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland
Sec. (EPIC), 653 F.3d 1, 6–7 (D.C. Cir. 2011). Interpretative
rules are those that clarify a statutory or regulatory term,
remind parties of existing statutory or regulatory duties, or
“merely track[]” preexisting requirements and explain
something the statute or regulation already required. Nat’l
Family Planning & Reprod. Health Ass’n, Inc. v. Sullivan,
979 F.2d 227, 236–37 (D.C. Cir. 1992). To be interpretative,
a rule “must derive a proposition from an existing document
whose meaning compels or logically justifies the
proposition.” Catholic Health Initiatives v. Sebelius, 617 F.3d
490, 494 (D.C. Cir. 2010).

     A legislative rule, on the other hand, “is one that does
more than simply clarify or explain a regulatory term, or
confirm a regulatory requirement, or maintain a consistent
agency policy.” Nat’l Family Planning & Reprod. Health
Ass’n, Inc., 979 F.2d at 237. A rule is legislative if it
supplements a statute, adopts a new position inconsistent with
existing regulations, or otherwise effects a substantive change
in existing law or policy. Id.; see also Shalala v. Guernsey
Mem’l Hosp., 514 U.S. 87, 100 (1995).

    The defendants point to four statutory and regulatory
provisions the TEGLs purportedly interpret. First, the
                               31
defendants argue the TEGLs are interpretations of the
Department’s mandate, found at 8 U.S.C. § 1188(a)(1), to
certify the admission of H-2A workers only if there are not
sufficient American workers and if admitting the foreign
workers would not adversely affect the wages and working
conditions of American workers similarly employed.
According to the defendants, the TEGLs interpret this
statutory requirement by providing guidelines to determine
whether there are sufficient American workers for herding
occupations. If the defendants are correct, it is difficult to
imagine what regulations would require notice and comment
procedures. Section 1188(a)(1) establishes the INA’s general
mission; Congress left it to the Department of Labor to
implement that mission through the creation of specific
substantive provisions. To take just one example, the statute
does not provide adequate guidance with regard to how an
employer must attempt to recruit American workers before it
can obtain certification that there is a shortage of American
workers—an issue the TEGLs clarify in some detail. The
statute explicitly envisions implementing regulations that will
clarify the meaning and application of its provisions. See 8
U.S.C. §§ 1188(b)(1), (c)(3)(B)(i), (c)(3)(B)(iii), (c)(4); cf.
AFL-CIO v. Brock, 835 F.2d 912, 914 (D.C. Cir. 1987)
(“[T]he [statute] does not define ‘adverse effect.’ Nor does
the Act specify how adverse effect is to be measured. The
Department is entrusted with these tasks.”). The TEGLs do
more than clarify or remind parties of preexisting duties under
§ 1188. Rather, they supplement the statute by imposing
specific duties on employers seeking certification under the
statute. Cf. EPIC, 653 F.3d at 7 (agency’s formulation of
strict and specific obligations to implement a broad statutory
command—“to detect weapons”—was not an interpretative
rule). 15

15
     If the TEGLs and general H-2A regulations were both merely
                                32

     Second, the Department of Labor argues the TEGLs
interpret the statutory directive “[t]hat the Secretary of Labor
shall issue regulations which address the specific
requirements of housing for employees principally engaged in
the range production of livestock.” 8 U.S.C. § 1188(c)(4).
But rather than setting out a substantive standard the TEGLs
might interpret, the statute delegates authority for the
Secretary of Labor to create the substantive standard. Where
Congress has specifically declined to create a standard, the
Department cannot claim its implementing rule is an
interpretation of the statute. As the Seventh Circuit has
stated, a binding rule promulgated pursuant to a delegation of
legislative authority is “the clearest possible example of a
legislative rule, as to which the notice and comment
procedure not followed here is mandatory, as distinct from an
interpretive rule; for there [is] nothing to interpret.” Hoctor v.
U.S. Dep’t of Agric., 82 F.3d 165, 169–70 (7th Cir. 1996).

     Third, the intervenors argue the TEGLs interpret 20
C.F.R. § 655.102, which grants the Office of Foreign Labor
Certification Administrator the authority to establish special
procedures for processing certain H-2A applications—
including those for herders. This argument fails for the same
reason the previous argument fails. In issuing the TEGLs, the
Department cannot possibly be interpreting a grant of
unconstrained and undefined authority. See EPIC, 653 F.3d
at 7 (“[T]he purpose of the APA would be disserved if an
agency with a broad statutory command . . . could avoid
notice-and-comment rulemaking simply by promulgating a

interpreting the same language of § 1188, it is difficult to imagine
how those rules could produce such different schemes, for instance
with regard to whether employers must offer workers an Adverse
Effect Wage Rate.
                               33
comparably broad regulation . . . and then invoking its power
to interpret that statute and regulation in binding the public to
a strict and specific set of obligations.”). Furthermore,
§ 655.102 states the Administrator may establish an AEWR
for herding occupations. It would be preposterous for the
defendants to argue the Department’s decision not to establish
an AEWR for herders is only an interpretation of a provision
granting it the authority to establish such a wage rate.

     Fourth, the Department argues that, in setting wage
requirements for H-2A employers, the TEGLs interpret the
term “offered wage rate” found in 20 C.F.R. § 655.120.
Section 655.120—which is titled “Offered wage rate”—
requires employers to offer and pay workers “a wage that is
the highest of the AEWR, the prevailing hourly wage or piece
rate, the agreed-upon collective bargaining wage, or the
Federal or State minimum wage, except where a special
procedure is approved for an occupation or specific class of
agricultural employment.” The TEGLs cannot be interpreting
the “offered wage rate” as defined in 20 C.F.R. § 655.120
because they ignore that regulation’s general rule and, instead,
take advantage of its standardless exception. In fact, the
TEGLs state they “continu[e] a special variance to the offered
wage rate requirements contained at 20 CFR 655.120(a).”
TEGL No. 15-06, 76 Fed. Reg. at 47,244; TEGL No. 32-10,
76 Fed. Reg. at 47,257. The Department cannot claim to be
interpreting the very regulatory provision from which its own
rules declare it departs. Cf. United States v. Picciotto, 875
F.2d 345, 313–14 (D.C. Cir. 1989) (“In essence, the Park
Service is claiming that an agency can grant itself a valid
exemption to the APA for all future regulations, and be free of
APA’s troublesome rulemaking procedures forever after,
simply by announcing its independence in a general rule.
That is not the law. Such agency-generated exemptions
                              34
would frustrate Congress’ underlying policy in enacting the
APA by rendering compliance optional.”).

     The defendants cannot successfully point to any statute or
regulation that creates substantive standards the TEGLs
interpret. Rather than interpreting an existing statute or
regulation, the TEGLs “endeavor[] to implement the statute,
the effect of a legislative rule.” Chamber of Commerce of
U.S. v. OSHA, 636 F.2d 464, 469 (D.C. Cir. 1980). They
“provide[] the policy decision Congress omitted” in § 1188—
namely, how to ensure the admission of foreign herders does
not adversely affect American workers. Id.

                              B

     The Department of Labor alternatively argues the TEGLs
are exempt from notice and comment procedures because they
are “rules of agency organization, procedure, or practice.” 5
U.S.C. § 553(b). “Procedural rules,” the general label for
rules falling under this exemption, are “primarily directed
toward improving the efficient and effective operations of an
agency, not toward a determination of the rights [or] interests
of affected parties.” Batterton, 648 F.2d at 702 n.34.
Congress provided this exemption from the normal
rulemaking procedures “to ensure that agencies retain latitude
in organizing their internal operations.”         Id. at 707.
Procedural rules “do not themselves alter the rights or
interests of parties, although [they] may alter the manner in
which the parties present themselves or their viewpoints to the
agency.” Id. “[T]he distinction between substantive and
procedural rules is one of degree depending upon whether the
substantive effect is sufficiently grave so that notice and
comment are needed to safeguard the policies underlying the
APA.” EPIC, 653 F.3d at 5–6. Those policies are “to serve
the need for public participation in agency decisionmaking
                               35
and to ensure the agency has all pertinent information before
it when making a decision.” Id. at 6. The exception for
procedural rules is narrowly construed, id., and cannot be
applied “where the agency action trenches on substantial
private rights and interests,” Batterton, 648 F.2d at 708.

     Our decision in EPIC is instructive. In that case, this
court confronted a Transportation Security Administration
decision to screen airline passengers using advanced imaging
technology rather than magnetometers. EPIC, 653 F.3d at 2–
3. TSA, attempting to defend its adoption of the rule without
notice and comment, argued the decision merely affected the
procedures TSA would use in processing passengers through
the checkpoint. Id. at 6. We stated this was an “overly
abstract account of the change in procedure at the
checkpoint[,] elid[ing] the privacy interests at the heart of the
petitioners’ concern.” Id. Even though the checkpoint
protocols might be termed “procedural,” the change
“substantively affect[ed] the public to a degree sufficient to
implicate the policy interests animating notice-and-comment
rulemaking.” Id. Thus, we held the rule had “the hallmark of
a substantive rule” and was not entitled to the APA’s
exception for procedural rules. Id.

     Similarly, the TEGLs promulgated by the Department of
Labor substantively affect the regulated public. Perhaps
“stated at a high enough level of generality,” id., the TEGLs
seem procedural—they set forth the agency’s enforcement
plan for determining employer compliance with the
requirements of the INA and describe how employers seeking
H-2A certification should present themselves to the agency.
But a more practical account of the rules makes it clear the
TEGLs create substantive requirements by, inter alia, setting
the minimum wage an employer must offer American workers
before it can obtain H-2A certification. The TEGLs do not
                              36
merely describe how the Department will evaluate H-2A
applications, but they set the bar for what employers must do
to obtain approval. In doing so, they substantially affect the
rights and interests of both herders and employers.

     The Department’s attempt to compare the TEGLs to the
Peer Review Organizations (PRO) Manual—which this court
found to constitute a procedural rule not subject to the notice
and comment requirement—in American Hospital Ass’n v.
Bowen, 834 F.2d 1037 (D.C. Cir. 1987), is unavailing. The
Manual at issue in that case set forth an enforcement plan for
the Department of Health and Human Service’s agents in
monitoring the activities of Medicare providers. Id. at 1050.
The regulations established areas of focus for PRO review but
did not impose any new burdens on hospitals that would
warrant notice and comment. Id. at 1050–51. But, as we
noted, had HHS “inserted a new standard of review” or a
“presumption of invalidity” applicable to certain operations,
“its measures would surely require notice and comment, as
well as close scrutiny to insure that it was consistent with the
agency’s statutory mandate.” Id. at 1051.

     The TEGLs at issue here are nothing like the Peer
Review Organizations Manual we examined in American
Hospital Ass’n.      The TEGLs do not merely instruct
Department of Labor agents to give extra scrutiny to H-2A
applications from herder operations. Rather, they alter the
standards imposed on herding employers seeking H-2A
certification. They are not procedural, but substantive rules.

                               C

    Beyond our conclusion that the TEGLs do not fall within
the APA’s exceptions, we are convinced the TEGLs were
subject to the notice and comment requirements because they
                                37
possess all the hallmarks of a legislative rule. The TEGLs are
necessarily legislative rules because they “effect[] a
[substantive] change in existing law or policy,” Nat’l Family
Planning & Reprod. Health Ass’n, Inc., 979 F.2d at 237, and
“effectively amend[] a prior legislative rule,” Am. Mining
Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112
(D.C. Cir. 1993). 16 In the absence of the TEGLs, petitions for
certification of H-2A herders would be subject to the
standards found in 20 C.F.R. part 655, which would, to take
only a few examples, require employers to pay herders the
higher of the AEWR, the prevailing wage, or the minimum
wage, keep track of herders’ hours, and pay herders at least
twice a month. The TEGLs, on the other hand, require
employers to pay only the higher of the prevailing wage rate
or minimum wage, exempt employers from recording herders’
hours actually worked, and allow employers to pay employees
once monthly upon mutual agreement between employer and
worker. TEGL No. 15-06, 76 Fed. Reg. at 47,244–46; TEGL
No. 32-10, 76 Fed. Reg. at 47,257–59. Because the TEGLs
change the regulatory scheme for herding operations, they are
legislative rules. Cf. City of Idaho Falls v. FERC, 629 F.3d
222, 227 (D.C. Cir. 2011). The APA required the Department
of Labor to give the public notice and an opportunity to
comment before it promulgated the TEGLs.

                               ***

16
  The intervenors, citing prior TEGLs and Field Memoranda, argue
the 2011 TEGLs restate the Department’s consistent practice
regarding herders. But in deciding whether a rule is interpretative,
we do not look to whether it interprets or restates prior rules
similarly published without notice and comment. Rather, we look
to whether the TEGLs interpret legislative documents—statutes
passed by Congress or regulations promulgated pursuant to the
procedural requirements of the APA.
                               38

    The plaintiffs have asked us to remand to the district
court to craft a remedy to the APA violation. The district
court will have to consider various factors including whether
vacating the TEGLs would have a disruptive effect on the
herding industry and how quickly the Department of Labor
might be able to promulgate, pursuant to the procedural
requirements of the APA, new H-2A regulations for herding
operations. Cf. EPIC, 653 F.3d at 8. We leave these
questions for the district court in the first instance.

     The district court erred in holding the plaintiffs lack both
Article III and prudential standing to bring this action. As
participants in the labor market for herders, the plaintiffs were
injured by the Department of Labor’s promulgation of the
TEGLs and fall within the zone of interests protected by the
INA. On the merits of their claim, the plaintiffs are entitled to
entry of summary judgment in their favor. The TEGLs are
legislative rules and the Department of Labor violated the
Administrative Procedure Act by promulgating them without
providing public notice and an opportunity for comment. We
reverse the judgment of the district court and remand for
proceedings consistent with this opinion.

                                                    So ordered.
