We are faced with the question whether the Occupational Safety and Health Administration ("OSHA") validly concocted a calculus to target employers for inspection without first providing the notice and comment rulemaking prescribed by the Administrative Procedure Act ("APA" or "Act"), 5 U.S.C. Sec. 553 (1982). Because we conclude that the Secretary of Labor promulgated a procedural rule that does not generate a substantial impact on the rights or interests of regulated parties, we hold that the Secretary's action did not run afoul of Sec. 553 and reverse the judgment of the district court below.

On December 1, 1982, defendant-appellant United States Department of Labor applied for and obtained a search warrant authorizing a programmed safety and health inspection of a steel castings manufacturing facility in Shreveport, Louisiana. That plant is owned and operated by plaintiff-appellee Kast Metals Corporation ("Kast"), which employs some 1000-2500 workers. The warrant application stated that Kast had been selected for inspection pursuant to a revised administrative plan, OSHA Instruction CPL 2.25B. A federal magistrate found probable cause and issued the warrant, but the company refused to honor its terms. When OSHA agents attempted to conduct the inspection on December 1-3, 1981, Kast allowed access only to the company's records and denied entry to conduct a physical examination of the workplace.

At the time of the OSHA-Kast conflict, CPL 2.25B set forth the criteria and method by which OSHA selected employers for routine safety and health inspections. The plan's stated objective was to concentrate inspection resources "in industries with the highest lost workday injury rates (safety) and with the greatest potential for health problems." CPL 2.25B(E)(4)(c), at 3. This method changed a previous policy of "wide dispersion of inspection activity," id., in an attempt both to reduce the subjectivity of OSHA's selection process and to allocate agency inspection resources more efficiently. After feeding the relevant data into its recipe,1 OSHA found appellee to be first on the list of employers requiring health inspections but not within the group of companies to be scheduled for a safety check.

On December 8, Kast moved in federal district court to quash the warrant, contending that OSHA had promulgated CPL 2.25B without satisfying the notice and comment rulemaking procedures required by the APA, 5 U.S.C. Sec. 553. The Secretary answered Kast's motion and counterclaimed for an adjudication holding Kast in contempt for having failed to comply with the warrant. In response to Kast's contention that notice and an opportunity for comment should have been provided, the Secretary maintained that CPL 2.25B was within the exemption for "rules of agency organization, procedure, or practice" contained in section 553(b)(A), and that the action did not have a substantial impact on the rights or interests of Kast. In turn, Kast retorted that CPL 2.25B fell outside the exemption because the inspection plan constituted a legislative rule and because, even if not legislative by the terms of section 551(4), the OSHA scheme was a procedural rule that had substantial impact on employers because it affected the likelihood of their being inspected.

The district court concluded that CPL 2.25B had been promulgated in violation of the notice and comment requirements embodied in section 553. Citing this court's decisions in Brown Express, Inc. v. United States, 607 F.2d 695, 701-02 (5th Cir.1979), and Donovan v. Huffines Steel Co., 645 F.2d 288 (5th Cir.1981), aff'g mem. 488 F. Supp. 995 (N.D.Tex.1979), the judge below held that the exemption from notice and comment requirements for procedural rules did not extend to CPL 2.25B because it departed from existing practice and had a substantial impact on those regulated. In essence, the ruling found substantial impact in the fact that CPL 2.25B determined whether and at what time an employer would be inspected.

The district court's disposition subsumes two conclusions; first, that OSHA's investigative plan constituted a procedural rule within the meaning of 5 U.S.C. Sec. 551(4), and second, that the exemption from APA notice and comment requirements generally applicable to procedural rules was overridden by the plan's substantial impact on the regulated parties. We agree only with the former proposition.2

With certain exceptions, the APA directs that administrative agencies afford notice of a proposed rulemaking and an opportunity for public comment prior to the rule's promulgation, amendment, or modification. 5 U.S.C. Sec. 553. We begin by evaluating appellant's first claim, that the inspection plan does not fit within the Act's definition of a "rule." See id. Sec. 551(4).

Before doing so, we note that this Court is not bound by an administrative agency's classification of its own action. CBS, Inc. v. United States, 316 U.S. 407, 62 S. Ct. 1194, 86 L. Ed. 1563 (1942); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir.1983); Brown Express, 607 F.2d at 700; Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 481-82 (2d Cir.1972); Texaco, Inc. v. Federal Power Commission, 412 F.2d 740, 743-45 (3d Cir.1969). The reason for this standard is clear. Although the courts must recognize broad administrative discretion whether to implement procedures above the minima required by Congress, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 544-49, 98 S. Ct. 1197, 1211-14, 55 L. Ed. 2d 460 (1978), an agency cannot outflank either the strictures of its enabling legislation or the APA's rulemaking framework by definitional fiat. See International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 566 n. 20, 99 S. Ct. 790, 800 n. 20, 58 L. Ed. 2d 808 (1979); Zuber v. Allen, 396 U.S. 168, 193, 90 S. Ct. 314, 328, 24 L. Ed. 2d 345 (1969); NLRB v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 988, 13 L. Ed. 2d 839 (1965). A paisley ribbon will not make up for damaged goods; the substance, not the label, is determinative. See Western Coal Traffic League v. United States, 694 F.2d 378, 392 & n. 61 (5th Cir.1982), vacated in part en banc, 719 F.2d 772 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S. Ct. 2160, 80 L. Ed. 2d 545 (1984); American Trucking Associations, Inc. v. ICC, 659 F.2d 452, 462-64 (5th Cir.1981), cert. denied, 460 U.S. 1022, 103 S. Ct. 1272, 75 L. Ed. 2d 493 (1983); Chamber of Commerce v. OSHA, 636 F.2d 464, 468 (D.C.Cir.1980); Energy Consumers & Producers Association, Inc. v. Department of Energy, 632 F.2d 129, 142 (Temp.Emer.Ct.App.), cert. denied, 449 U.S. 832, 101 S. Ct. 102, 66 L. Ed. 2d 38 (1980).

The nomenclature of administrative action has its genesis in the APA. The Act states that " 'rule' means the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the ... procedure of an agency ...." 5 U.S.C. Sec. 551(4). The OSHA inspection plan falls squarely within these terms; CPL 2.25B sets forth a procedure for selecting employers for safety and health inspections pursuant to the Occupational Safety and Health Act of 1970 ("OSH Act"), 29 U.S.C. Sec. 657 (1982).

Nevertheless, averring to the distinction between rulemaking and investigation,4 the Secretary urges that because the inspection plan does not require any action on the part of those regulated, the plan is more in the nature of a preliminary investigation than it is a prescriptive statement. The Secretary asserts that investigative action merely facilitates an agency's gathering of information, while a rule has a more immediate or direct effect on those regulated because it requires or prohibits conduct.

These categories are not mutually exclusive, however. In many cases, information-gathering can be the result of a rule, see, e.g., Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 9 (1st Cir.1982), and preliminary investigative activity can mold conduct in clearly identifiable ways, see, e.g., Guardian Federal Savings & Loan Association v. Federal Savings & Loan Insurance Corp., 589 F.2d 658, 664-68 (D.C.Cir.1978). To state that a line exists between investigative activity that anticipates the promulgation of a rule (or the initiation of enforcement proceedings) and the rule itself demarcates only a vague result--it does not illumine the content of the distinction.

That distinction is marked by a particular action's niche along a spectrum of administrative activity. The characterization of agency action as investigative or rule-based is not a function of impact on those potentially subject to the agency's mandate;5 instead, we must look to the intrinsic nature of the action in terms of the way an agency does business. Cf. Joseph v. United States Civil Service Commission, 554 F.2d 1140, 1153 n. 24 (D.C.Cir.1977) ("The relevant distinction between ... rules is not the nature of the questions they address but the authority and intent with which they are issued and the resulting effect on the power of a court to depart from ... the rule.")

We do not see how CPL 2.25B could constitute an investigative action to the exclusion of its status as a rule. The purpose of an administrative investigation is to uncover facts with an eye towards the potential initiation of an agency adjudication, see U.S. v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614 (1946); cf. Genuine Parts Co. v. FTC, 445 F.2d 1382 (5th Cir.1971) (distinguishing agency investigations from adjudications), or, more generally, for the purpose of facilitating an agency's regulatory goals, see FCC v. Schreiber, 381 U.S. 279, 289-94, 85 S. Ct. 1459, 1467-69, 14 L. Ed. 2d 383 (1965); Appeal of FTC Line of Business Report Litigation, 595 F.2d 685, 695-96 (D.C.Cir.) (per curiam), cert. denied sub nom. Milliken & Co. v. FTC, 439 U.S. 958, 99 S. Ct. 362, 58 L. Ed. 2d 351 (1978).6 An investigation discovers and produces evidence, Genuine Parts, 445 F.2d at 1388; it can take place only after the agency has decided to investigate, and the procedures by which this determination is made are separate from and precede the agency's ultimate act. The creation and use of CPL 2.25B to select employers for inspection did not of itself constitute investigation; rather, the plan sets forth procedural steps to guide the agency in exercise of its statutory authority to conduct inspections.7 See 29 U.S.C. Sec. 657(a), (g)(2).

Even if the agency's plan fell within the ambit of investigative activity, the language of OSHA's enabling legislation and the APA strongly suggests classifying CPL 2.25B as a rule. Section 8 of OSH Act states the "[t]he Secretary [of Labor] and the Secretary of Health and Human Services shall each prescribe such rules and regulations as he may deem necessary to carry out their responsibilities under this chapter, including rules and regulations dealing with the inspection of an employer's establishment." Id. Sec. 657(g)(2). The Secretary thus possesses the authority to issue both procedural and legislative rules regarding workplace inspections. Chamber of Commerce, 636 F.2d at 468; Cerro Metal Products v. Marshall, 620 F.2d 964, 982 (3d Cir.1980). Moreover, the APA indicates that any such agency action will necessarily constitute a rule. The Act states that "inspection ... or other investigative act or demand may not be issued, made, or enforced except as authorized by law." 5 U.S.C. Sec. 555(c). Since an agency act designed to implement law is by definition a rule,8 see id. Sec. 551(4), it follows that all regulations regarding the method of workplace inspections are rules.9 See Chaney v. Heckler, 718 F.2d 1174, 1185-88 (D.C.Cir.1983), cert. granted, --- U.S. ----, 104 S. Ct. 3532, 82 L. Ed. 2d 838 (1984); Center for Auto Safety v. National Highway Traffic Safety Administration, 710 F.2d 842, 845-46 (D.C.Cir.1983) (per curiam).

None of this is to say that classification as a rule triggers notice and comment. While the definition of a rule is broad, the rigors of the APA do not apply to all such administrative actions. Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir.1983); Batterton v. Marshall, 648 F.2d 694, 700 (D.C.Cir.1980). The Secretary has attempted to re-mold the Act's basic definition of a rule in search of a result that can be derived in a more principled way from elsewhere in the Act. We now turn to this more central question.

B. The Rulemaking Exemption and Substantial Impact

The APA expressly exempts "rules of agency organization, procedure, or practice" from the requirements of notice and comment rulemaking. 5 U.S.C. Sec. 553(b)(A). This exemption, as well as others specified proximately in the Act,10 is a consequence of Congress's belief that "certain administrative pronouncements [do] not require public participation in their formulation," Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 37 (D.C.Cir.1974). In exempting procedural rules, Congress has placed a premium on efficiency by avoiding the often cumbersome and time-consuming mechanisms of public input. See Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877-881 (3d Cir.1982); cf. SEC v. Chenery Corp., 332 U.S. 194, 202-03, 67 S. Ct. 1575, 1580, 91 L. Ed. 1995 (1947) (discussing need for agency flexibility in face of the unforeseeable). This judgment prevailed despite the widely-shared recognition that administrative agencies need direct lines to the public voice because of their distance from the elective process.11

It is beyond dispute that CPL 2.25B is, on the surface, a procedural rule.12 "The central distinction among agency regulations found in the APA is that between 'substantive rules' on the one hand and 'interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice' on the other." Chrysler Corp. v. Brown, 441 U.S. 281, 301, 99 S. Ct. 1705, 1717, 60 L. Ed. 2d 208 (1979) (footnote omitted). Whereas substantive or "legislative" rules affect individual rights and obligations and are binding on the courts, id. at 302, 99 S.Ct. at 1718; American Trucking Association v. United States, 688 F.2d 1337, 1341 (11th Cir.1982), rev'd on other grounds, --- U.S. ----, 104 S. Ct. 2458, 81 L. Ed. 2d 282 (1984), nonlegislative rules do not have the force of law, id. At least initially, courts "will honor [an agency's] characterization if it reasonably describes what the agency in fact has done." Id. at 1344; see American Postal Workers Union v. United States Postal Service, 707 F.2d 548, 558-59 (D.C.Cir.1983), cert. denied, --- U.S. ----, 104 S. Ct. 1594, 80 L. Ed. 2d 126 (1984).

The plan's stated purpose was to "describe[ ] the steps to be followed and the criteria to be applied in selecting workplace establishments for programmed inspection" pursuant to the OSH Act, 29 U.S.C. Sec. 657(g)(2). CPL 2.25B(A), at 1. Moreover, the plan does not purport or seem to create new law; instead, it contained an OSHA policy of "simplified ... scheduling procedures in order to ease the administrative burden." CPL 2.25B(E)(4)(b), at 3. The Secretary used CPL 2.25B to concentrate OSHA's inspection resources in industries with the highest potential for safety and health violations. See CPL 2.25B(E)(4)(c), at 3. The plan is procedural on its face. Accord Stoddard Lumber Co. v. Marshall, 627 F.2d 984, 988 (9th Cir.1980).13

This conclusion, however, does not end our inquiry. As noted earlier,14 the distinction between a rule of procedure and one of substance is not black and white. See Avoyelles Sportsmen's League, 715 F.2d at 909; Batterton, 648 F.2d at 702-03 & nn. 37-38. We do not subscribe the poetic license of "a rule is a rule is a rule." Just as we must look beyond the label in determining whether agency action is a "rule,"15 we must make a similar probe in categorizing the type of rule for purposes of APA notice and comment under section 553.

Inevitably, in determining whether the APA requires notice and comment rulemaking, the interests of agency efficiency and public input are in tension. The exemption from informal rulemaking requirements for procedural rules reflects the congressional judgment that such rules, because they do not directly guide public conduct, do not merit the administrative burdens of public input proceedings. In applying this exemption, then, courts have been less concerned with the formal appellation of a rule--whether it is "procedural" or "substantive"--than with its effect on those within its regulatory scope. See, e.g., Avoyelles, 715 F.2d at 908-10; Lamoille Valley Railroad Co. v. ICC, 711 F.2d 295, 327-28 (D.C.Cir.1983); National Association of Home Health Agencies v. Schweiker, 690 F.2d 932, 949 (D.C.Cir.1982), cert. denied, 459 U.S. 1205, 103 S. Ct. 1193, 75 L. Ed. 2d 438 (1983); Cabais v. Egger, 690 F.2d 234, 237 (D.C.Cir.1982); Brown Express, Inc. v. United States, 607 F.2d 695, 700-03 (5th Cir.1979). In Brown Express, we recognized that a seemingly procedural rule does not have its apparent nature cast in stone for purposes of APA rulemaking requirements:

"[W]hen a proposed regulation of general applicability has a substantial impact on the regulated industry, or an important class of the members or the products of that industry, notice and opportunity for comment should first be provided." [Pharmaceutical Manufacturers Association v. Finch,] 307 F. Supp. 858, 863 (D.Del.1970) (emphasis added). The exemption of section 553(b)(A) from the duty to provide notice by publication [and a forum for public comment16 ] does not extend to those procedural rules that depart from existing practice and have a substantial impact on those regulated.

Id. at 702. In essence, the substantial impact test is the primary means by which courts look beyond the label "procedural" to determine whether a rule is of the type Congress thought appropriate for public participation. See Pickus v. United States Board of Parole, 507 F.2d 1107, 1114 (D.C.Cir.1974). An agency rule that modifies substantive rights and interests can only be nominally procedural, and the exemption for such rules of agency procedure cannot apply.17 Accord National Association of Home Health Agencies, 690 F.2d at 949.

Kast urges that, having found CPL 2.25B to be a procedural rule, we should nevertheless not give effect to the APA's procedural rules exemption from informal rulemaking18 requirements because the rule has substantial impact on those regulated. We disagree.

OSHA's inspection plan casts not the stone of substantial impact. We add our voice to the court's in Stoddard Lumber Co. v. Marshall, 627 F.2d 984 (9th Cir.1980),19 where the Ninth Circuit concluded that a previous version of the plan now before us did not merit notice and comment procedure.20 Id. at 987-88; see In re Trinity Industries, No. Misc.-J-83-131-12 (M.D.Fla.1984); In re Establishment of Chicago Aluminum Castings Co., 535 F. Supp. 392, 397 (N.D.Ill.1981); cf. Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 9 (1st Cir.1982) (holding previous OSHA inspection plan did not have significant impact on substantive rights of employers within publication provision of 5 U.S.C. Sec. 552(a)(1) (1976)). CPL 2.25B has no cognizable impact, substantial or otherwise, on any right or interest of Kast. While the company has an "interest ... in being free from unreasonable intrusions onto its property by agents of the government," Donovan v. Dewey, 452 U.S. 594, 599, 101 S. Ct. 2534, 2538, 69 L. Ed. 2d 262 (1981), this interest does not extend to freedom from any OSHA inspection. The government still must satisfy a federal magistrate, as it did in this case, "that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria." Marshall v. Barlow's, Inc., 436 U.S. 307, 323, 98 S. Ct. 1816, 1826, 56 L. Ed. 2d 305 (1981). Any fourth amendment interest, then, should be vindicated initially by the magistrate's watchful eye and, failing this, by the federal courts.21 See Stoddard Lumber, 627 F.2d at 988.

Moreover, the rights and obligations of an employer within OSHA's jurisdiction exist independently of a plan whose sole purpose is the funnelling of agency inspection resources. If Kast's argument is that another directive might have spared it an inspection or given rise to one at another time, we find no merit therein. Adherence to the safety and health standards promulgated by OSHA under 29 U.S.C. Sec. 655, should not turn on the agency's ability or inclination to play watchdog. No inspection plan creates in an employer the right to be free of citation; the relevant standards of employer conduct originate not in CPL 2.25B but elsewhere. See 29 U.S.C. Sec. 654; see also American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 101 S. Ct. 2478, 69 L. Ed. 2d 185 (1981) (construing OSHA standard promulgated pursuant to 29 U.S.C. Sec. 655).

This plan has less impact on the rights and interests of employers than have agency regulations requiring submission of data for investigatory purposes, see Appeal of FTC Line of Business Report Litigation, 595 F.2d 685 (D.C.Cir.) (per curiam), cert. denied sub nom. Milliken & Co. v. FTC, 439 U.S. 958, 99 S. Ct. 362, 58 L. Ed. 2d 351 (1978); United States v. W.H. Hodges & Co., Inc., 533 F.2d 276 (5th Cir.1976) (per curiam), and submission to investigation preliminary to regulatory action, see Environmental Defense Fund v. Costle, 636 F.2d 1229 (D.C.Cir.1980), each of which has been held not to require notice and comment. Indeed, the impact of the inspection plan before us falls well short of the regulation in Guardian Federal Savings & Loan Association v. Federal Savings & Loan Insurance Corp., 589 F.2d 658 (D.C.Cir.1978), where the court held that agency provisions for selecting, among other things, auditors and auditing criteria did not have substantial impact. Id. at 664-68; see also Associated Dry Goods Corp. v. EEOC, 720 F.2d 804 (4th Cir.1983) (holding that disclosure rule regulating access to agency's investigative files was within procedural rules exemption from informal rulemaking). Kast would have the APA's procedures interjected here when OSHA is merely playing a rational version of eenie-meenie-minie-moe so as to select someone neutrally for an inspection. Even when measured against the previous inspection plan, this method seems devoid of the gargantuan intrusiveness and radical change that we are told exists.

Finally, appellees assert that our disposition in Donovan v. Huffines Steel Co., 645 F.2d 288 (5th Cir.1981), aff'g mem. 488 F. Supp. 995 (N.D.Tex.1979), requires a finding of substantial impact in this case. See also Cerro Metal Products v. Marshall, 620 F.2d 964, 981-82 (3d Cir.1980). The OSHA rule at issue in Huffines dispensed with an agency practice that afforded employers the opportunity to contest the validity of inspection warrants prior to their issuance. The court held that the Secretary could not promulgate this ostensibly procedural rule without notice and comment because the sudden availability of ex parte warrant proceedings had a substantial impact on the expectations and conduct of employers with regard to OSHA inspection activity. 488 F. Supp. at 100001. The ex parte warrant rule at issue in Huffines constituted a "180-degree shift" in agency practice, id. at 1001, thereby closing off an entire avenue of employer input that potential inspection targets had come to rely on in their dealings with the agency. See National Association of Home Health Agencies, 690 F.2d at 949-50; American Trucking Association, 688 F.2d at 1348; Brown Express, 607 F.2d at 702-03.

In our case, however, appellee asserts no defeated expectations as a result of CPL 2.25B. We would be surprised if it could. Although the plan departed from a previous inspection formula, see CPL 2.25B(E)(4)(c), at 3, change alone is insufficient to satisfy the twin prongs of departure and substantial impact found in Brown Express, 607 F.2d at 702. In addition, although the plan affects every employer subject to OSHA's jurisdiction, this reason is only tangentially relevant to a discussion of substantial impact. All agency rules will in some way affect those within the agency's grasp. Such is the nature of rules. To find substantial impact in a rule that is procedural in all respects other than in its numerical reach would lead us into an abyss of infinite regression.22 The substantive effect of CPL 2.25B is purely derivative: the source of the employers' woes is the OSH Act itself as well as in the legislative rules promulgated in its shadow, which alone are responsible for having shaped employer conduct.

We do not subscribe to the edict that every administrative proclamation, fiat, or decree constitutes a rule mandating the rigors that appellant would apply to this case. Words such as "rule," "impact," "procedure," et cetera, must contain within their syllables an alphabetical concatenation: the application of practicality and reasonableness, and the actual on-the-site effect upon the agency as well as upon the employer of whatever has been promulgated. Were Kast correct, any system within an agency that determines who should proceed against whom would be an APA matter of intrusion, domination, or substantive regulation. We would foresee aeons of rulemaking proceedings when all the agency seeks to do is operate in a rational manner. Cf. Donovan v. Union Packing Co. of Omaha, 714 F.2d 838, 840 (8th Cir.1983) (holding constriction of Secretary's independent subpoena power to be inconsistent with enforcement of OSH Act).

It has been almost three years since OSHA attempted to inspect this employer for health violations. Because the district court should have honored the inspection warrant, we reverse the judgment below and remand with instructions to dismiss appellee's motion to quash. Let the die be Kast.

REVERSED and REMANDED.