Whether USDA had to use notice-and-comment rulemaking before eliminating routine face-to-face label-review appointments.
Holding
No. The change was a procedural rule exempt from the APA's notice-and-comment requirement.
Reasoning
The APA generally requires notice and an opportunity for comment before an agency adopts a rule, but it expressly exempts rules of agency organization, procedure, or practice. Under D.C. Circuit precedent, the key question is whether the rule itself changes private parties' substantive rights or interests, rather than merely changing how they present matters to the agency.
USDA's action did not alter the substantive criteria for approving food labels. The same FSIS labeling staff continued to review applications under the same standards; only the method of submitting and obtaining review changed. That made the rule procedural under the framework applied in JEM Broadcasting Co. v. FCC.
Even assuming that ending face-to-face review substantially burdened food producers by slowing approval, a burdensome procedural rule does not thereby become a substantive rule. The APA's procedural exception turns on the rule's character, not on the magnitude of its practical impact.
Likewise, USDA's judgment that the new process would better promote efficiency and fairness did not transform the rule into a substantive one. Agency housekeeping decisions commonly rest on judgments about which procedures work best, and those judgments do not change the procedural nature of the resulting rule.
National Association of Home Health Agencies v. Schweiker did not require a different result. That case involved a transfer of decision-making authority from one set of agency officials to another, while USDA left authority over label review with the same staff members and merely ended routine in-person appointments.】【”】【},{