Full opinion text
MEMORANDUM OPINION KETANJI BROWN JACKSON, District Judge. I. INTRODUCTION Before this Court is a motion for a preliminary injunction challenging a regulation that the Agricultural Marketing Service (“the AMS” or “the agency”) promulgated in May of 2013, pursuant to a statute Congress first passed in 2002. The regulation implements a statutory scheme regarding “country-of-origin labeling” (“COOL”) for certain commodities. See 78 Fed.Reg. 31,367 (May 24, 2013) (“Final Rule — Mandatory Country of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat, Wild and Farm-Raised Fish and Shellfish, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts,”) [hereinafter, “Final Rule”]. Plaintiffs are a group of meat industry trade associations who implore the Court to enjoin the Final Rule preliminarily, claiming that it violates their First Amendment rights, exceeds the agency’s authority under the implementing statute, and violates the Administrative Procedure Act, 5 U.S.C. § 706 (2012) et seq. (the “APA”), and that their members will be irreparably harmed absent a preliminary injunction. Defendants are the United States Department of Agriculture (“USDA”), its Secretary Tom Vilsack in his official capacity, the AMS — a division of the USDA with responsibility for promulgating the Final Rule and administering the COOL program — and AMS Administrator Anne Alonzo in her official capacity (collectively, “Defendants” or the “Government”). The Court has also permitted a group of intervenors (“Defendant-Intervenors”) to join the case on the side of Defendants. The Defendant-Intervenors are several meat industry trade groups and a consumer advocacy group that support the Final Rule. II. STATUTORY AND REGULATORY FRAMEWORK A. The Agricultural Marketing Act The legislation underlying the Final Rule was enacted initially in 2002 as an amendment to the Agricultural Marketing Act of 1946, 7 U.S.C. § 1621 et seq. (the “AMA”). See Pub.L. No. 110-171, 121 Stat. 2467 (2002). As originally written, the 2002 country-of-origin statute required retailers of “covered commodities” to inform consumers of the country of origin of such commodities. Id. at sec. 282(a)(1). In addition, the statute provided criteria establishing when a retailer was permitted to designate a covered commodity as having a United States country of origin. Id. at sec. 282(a)(2). In the ease of beef, lamb, and pork, the 2002 statute provided that retailers could use a U.S. designation only for meat derived from “an animal that is exclusively born, raised, and slaughtered in the United States.” Id. The statute further instructed the Secretary of Agriculture (the “Secretary”) to “promulgate such regulations as are necessary to implement” the statute no later than September 30, 2004. Id. sec. 284(b). After enacting the statute, however, Congress twice delayed its regulatory implementation, first until 2006 (Consolidated Appropriations Act, Pub.L. No. 108-199, 118 Stat. 3, sec. 749 (2004)), and then until 2008 (Agricultural & Related Agencies Appropriations Act, 2006, Pub.L. No. 109-97, 119 Stat. 2120 sec. 792 (2005)). In 2008, the relevant provisions of the statute were amended as a part of The Food, Conservation, and Energy Act of 2008 (also known as “the 2008 Farm Bill”), Pub.L. No. 110-234, 122 Stat. 923, sec. 11002, and codified at 7 U.S.C. § 1638a (2008) (the “COOL statute”). As amended in 2008 (and as it exists today), the COOL statute requires retailers to provide consumers with country-of-origin information and also sets forth a detailed categorization system that pertains to the manner in which covered commodities derived from certain livestock are to be designated for COOL purposes. See 7 U.S.C. § 1638a (2010) (reprinted in the Appendix to this opinion) [hereinafter “Appendix”]. The statute first instructs that “a retailer of a covered commodity shall inform consumers, at the final point of sale of the covered commodity to consumers, of the country of origin of the covered commodity.” Id. § 1638a(a)(l). The statute then articulates different requirements for the designation of muscle cut meats that largely depend upon an animal’s geographic history relative to its processing stages. See id. § 1638a(a)(2)(A)-(E). The first four designations relate to (A) an animal that has a United States country of origin {e.g., an animal that was “born, raised, and slaughtered” in the U.S.); (B) an animal that has multiple countries of origin; (C) an animal that is imported into the United States for immediate slaughter; and (D) an animal that has a foreign country of origin: As used in industry parlance and in this litigation, these four classifications for animals from which “muscle cut” meats are derived are referred to as Categories A, B, C, and D, corresponding to the subheadings under which they appear in 7 U.S.C. § 1638a(a)(2). See Appendix at A-l-2. B. Regulations Implementing the COOL Statute The 2002 amendments to the AMA directed the Secretary to promulgate “such regulations as are necessary to implement” the provisions of the COOL statute. Pub.L. No. 107-171 sec. 284(b). In 2009, after Congress enacted the 2008 version of the statute, the Secretary, acting through the AMS, published a final rule setting forth four possible COOL designations for retailers to use when marketing muscle cut meats. See 74 Fed.Reg. 2658-01 (Jan. 15, 2009) (the “2009 COOL Rule”). The 2009 COOL Rule provided examples of approved labels that corresponded to the four designation categories laid out in the statute: for Category A, “Product of the United States”; for Category B, “Product of the United States, Country X, and (as applicable) Country Y”; for Category C, “Product of Country X and the United States”; and for Category D, “Product of Country X.” Id. The 2009 COOL Rule also explicitly acknowledged that meat processors sometimes engage in “commingling” — the practice of processing multiple animals with varying countries of origin together during a single production day for slaughter and packaging — and directed that muscle cuts produced through this process should be labeled in the same way as Category B covered commodities, regardless of whether the commingled animals would each otherwise fall into Category A, B, or C. Id. Finally, the 2009 Rule permitted muscle cuts produced through commingling to list in any order the various countries of origin present in the commingled products. Id. C. The WTO Proceedings In October of 2009, Canada (later joined by Mexico) requested the formation of a panel of the World Trade Organization’s (‘WTO”) Dispute Settlement Body (“DSB”) to consider Canada’s claims that the 2009 COOL Rule discriminated against foreign livestock in violation of the United States’s obligations under the WTO Agreement on Technical Barriers to Trade (“TBT”). The- DSB panel, which issued findings in December of 2011, concluded that the 2009 COOL Rule accorded less favorable treatment to foreign livestock and therefore violated the TBT agreement. See Panel Report, United States — Certain Country of Origin Labeling (COOL) Requirements, WT/DS386/R (Nov. 18, 2011) ¶ 7.546 [hereinafter WTO Panel Report]. Both sides appealed certain aspects of the decision, and in June of 2012, the WTO Appellate Body issued a decision substantially confirming the panel’s findings. See Appellate Body Report, United States— Certain Country of Origin Labeling (COOL) Requirements, WDT/ AB/R/WT/DS386/R (June 29, 2012) [hereinafter Appellate Body Report]. The case was then transferred to a WTO arbitrator to determine the amount of time that the United States would be given to comply with the findings in the Appellate Body Report. The arbitrator issued a separate 58-page opinion ordering the United States to bring its COOL program into compliance with TBT by May 23, 2013. See Award of the Arbitrator, United States — Certain Country of Origin Labeling (COOL) Requirements, WDT/ AB/R/WT/DS386/23 (Dec. 4, 2012) [hereinafter WTO Arbitrator’s Report]. D. The 2013 Proposed And Final Rules ■ As a result of the Appellate Body Report, the AMS undertook a comprehensive review of the then-existing COOL program. On March 12, 2013, the agency issued a notice of proposed rulemaking outlining changes to the COOL program. See Proposed COOL Rule, 78 Fed.Reg. 15,645 (Mar. 12, 2013). This notice explained that the proposed changes were designed both to provide consumers with additional country-of-origin information and also to bring the United States into compliance with the Appellate Body Report. Id. The notice also provided for a 30-day public comment period. Id. At the end of the comment period, the AMS published the Final Rule. See Final Rule, 78 Fed.Reg. 31,367 (May 24, 2013). The Final Rule generally modifies the 2009 COOL Rule in two respects. First, the Final Rule requires COOL labels for muscle cut meats to specify where the “production steps” for each such product took place — that is, where the animal from which the commodity was derived was born, raised, and slaughtered. As with the 2009 COOL Rule, the Final Rule provides examples of acceptable labels: for Category A, “Born, raised, and slaughtered in the United States”; for Category B, “Born in Country X, raised and slaughtered in the United States”; for Category C, “Bom and raised in Country X, slaughtered in the United States”; and for Category D, “Product of Country X.” Id. at 31,385. Second, the Final Rule states that “this final rule eliminates the allowance for commingling of muscle cut covered commodities of different origins” in order to “let[ ] consumers benefit from more specific labels.” Id. at 31,369. The Final Rule also recognizes that, because of the new labeling requirements and the commingling ban, “it may not be possible for all of the affected entities to achieve 100% compliance immediately.” Id. The Final Rule therefore provides that, during a six-month period following the effective date of the Rule, the agency will “conduct an industry outreach and education program concerning the provisions and requirements of this rule.” Id. That grace period remains ongoing as of the writing of this opinion. E. The Instant Litigation Plaintiffs filed the original complaint in this action on July 8, 2013. (ECF No. 1.) On July 23, 2013, an amended complaint followed. (“Compl.,” ECF No. 15.) The complaint contains three separate counts that challenge the Final Rule as violating the First Amendment (Count I), the AMA (Count II), and the APA (Count III). On July 25, 2013, Plaintiff filed a motion for a preliminary injunction along with a memorandum of law in support of the motion. (“PL Br.,” ECF No. 24.) On August 9, 2013, pursuant to a Court-ordered briefing schedule, the agency filed an opposition to Plaintiffs’ preliminary injunction motion. (“Def. Br.,” ECF No. 30.) On that same day, Defendant-Intervenors filed a motion to intervene (ECF No. 28), along with a brief in- opposition to Plaintiffs’ Motion (“Int. Br.,” ECF No. 28-12). Plaintiffs filed their reply to the agency’s opposition on August 19, 2013 (“PL Reply,” ECF No. 33), and a supplemental reply responding to Defendant-Intervenors on August 22, 2013 (“PL Supp. Reply,” ECF No. 42). The Court held oral argument on the preliminary injunction motion on August 27, 2Q13. Upon consideration of the arguments presented in the briefs and at oral argument, and for the reasons explained below, the Court concludes that Plaintiffs’ motion for a preliminary injunction must be DENIED. A separate order consistent with this memorandum opinion will issue. III. LEGAL STANDARD FOR PRELIMINARY INJUNCTION A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A party seeking a preliminary injunction “must establish [1] that [it] is likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is in the public interest.” Id. at 20,129 S.Ct. 365. In conducting an inquiry into these factors, “[a] district court must ‘balance the strengths of the requesting party’s arguments in each of the four required areas.’ ... If the showing in one area is particularly strong, an injunction may issue even if the showings in other areas are rather weak.” Chaplaincy of Full Gospel Churches v. England (“CFGC”), 454 F.3d 290, 297 (D.C.Cir.2006) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995)). However, “a movant must demonstrate ‘at least some injury’ for a preliminary injunction to issue.” Id. (citation omitted). IV. LIKELIHOOD OF SUCCESS ON THE MERITS A. Plaintiffs’ First Amendment Claim Count I of Plaintiffs’ Complaint alleges that the Final Rule violates Plaintiffs’ First Amendment rights by compelling them to speak when they would rather not. (Compl. ¶¶ 72-80; see also PI. Br. at 12.) It is “a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say.” Agency for Int'l Dev. v. Alliance for Open Soc’y Int’l, Inc., — U.S. —, 133 S.Ct. 2321, 2327, 186 L.Ed.2d 398 (2013) (internal quotation marks and citations omitted); see also Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 957 (D.C.Cir.2013) (“[T]he First Amendment freedom of speech includes both the right to speak freely and the right to refrain from speaking at all.” (internal quotation marks and citation omitted)). Compelled speech, no less than restricted speech, is subject to strict scrutiny in most circumstances. See, e.g., Riley v. Nat’l Fed’n of the Blind of No. Carolina, Inc., 487 U.S. 781, 798, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (applying “exacting First Amendment scrutiny” to a state-law disclosure requirement applicable to professional fundraisers); see also Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 11 (D.C.Cir.2009) (applying strict scrutiny to a disclosure provision that applied to professional lobbyists). The focus in this case, however, is on compelled commercial speech, which all parties agree is subject to less exacting constitutional standards. Compelled commercial speech is generally evaluated under the intermediate scrutiny test that the Supreme Court first articulated in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). To withstand scrutiny under Central Hudson, the government regulation of speech must “directly advance” a “substantial” government interest “and be ‘n[o] more extensive than is necessary to serve that interest.’ ” Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 249, 130 S.Ct. 1324, 176 L.Ed.2d 79 (2010) (alteration in original) (citation omitted). Accordingly, the D.C. Circuit has explained that, for a government restriction on commercial speech to pass constitutional muster under Central Hudson, “the governmental interest must be substantial; the regulation must directly advance the governmental interest asserted; and the regulation must not be more extensive than is necessary to serve that interest.” Nat’l Cable & Telecommc’ns Ass’n v. FCC, 555 F.3d 996, 1000 (D.C.Cir.2009) (internal quotation marks and citations omitted). There is, however, an exception to the prevailing Central Hudson rule. In Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, the Supreme Court held that, where a law compels disclosure of “purely factual and uncontroversial information,” the law need only be “reasonably related to the [government’s] interest in preventing deception of consumers” to pass muster under the First Amendment. 471 U.S. 626, 651, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). The parties in the instant case differ sharply as to whether the Central Hudson (intermediate scrutiny) or the Zauderer (reasonableness) standard applies to the Final Rule’s compelled disclosure of production step information, and they largely rely on two recent decisions from the D.C. Circuit that illuminate the question of which test should be applied here. In R.J. Reynolds Tobacco Co. v. Food and Drug Administration (“RJR”), several tobacco companies challenged on First Amendment grounds an FDA regulation requiring graphic images to be displayed along with warnings on cigarette packs. 696 F.3d 1205 (D.C.Cir.2012). A divided panel of the D.C. Circuit ruled that intermediate scrutiny, not the Zauderer standard, applied for two main reasons: first, because the government had not shown that there is a “danger” that the tobacco companies’ advertisements “mislead consumers” without a warning that includes graphic images, id. at 1214; and second, because “the graphic warnings d[id] not constitute the type of purely factual and uncontroversial information or accurate statements to which the Zauderer standard applied.” Id. at 1216 (citing Zauderer, 471 U.S. at 651, 105 S.Ct. 2265, and Milavetz, 559 U.S. at 250, 130 S.Ct. 1324). Applying intermediate scrutiny per Central Hudson, the panel majority struck down the regulation on the second prong of the Central Hudson test, finding that the FDA had not provided enough evidence that the rule requiring graphic images along with warning labels would directly and materially further the government’s substantial interest in reducing smoking. RJR, 696 F.3d at 1221-22. Conversely, in Spirit Airlines, Inc. v. United States Department of Transportation, the D.C. Circuit considered a First Amendment challenge to a Department of Transportation (“DOT”) rule requiring that the total cost of airfare, inclusive of tax, be the most prominent price displayed on airline advertisements and travel websites. 687 F.3d 403 (D.C.Cir.2012). The panel majority in Spirit Airlines determined that Zauderer’s reasonableness standard, not Central Hudson’s intermediate scrutiny, governed the compelled commercial speech regulation at issue. Id. at 412-14. Specifically, the Spirit Airlines court noted that, where the rule in question is “directed at misleading commercial speech, and where [it] impose[s] a disclosure requirement rather than an affirmative limitation on speech, Zauderer, not Central Hudson, applies.” Id. at 412 (internal quotation marks omitted). The panel in Spirit Airlines also noted that the Zauderer standard could be applied even where an agency had not made an affirmative showing that the public had previously been deceived and thus the compelled disclosure was necessary, as long as “ ‘the possibility of deception ... was self-evident.’ ” Id. at 413 (quoting Zauderer, 471 U.S. at 651, 105 S.Ct. 2265). The Spirit Airlines majority found that these conditions were easily satisfied under the circumstance presented because the DOT rule required disclosure of factual information, and “based on common sense and ... experience,” the disclosure of such facts would likely address consumer confusion in the marketplace. Id. at 413. Accordingly, the panel applied Zauderer and ultimately held that the DOT rule did not violate the First Amendment. Id. at 413-14. The First Amendment arguments that the parties seek to advance in this case are largely based on the D.C. Circuit’s analyses in RJR and Spirit Airlines. Plaintiffs urge the Court to rely on language from RJR, and accordingly, they maintain that Central Hudson’s intermediate scrutiny applies. While Plaintiffs apparently do not dispute that the Final Rule’s production step labeling requirement is purely factual and noncontroversial, Plaintiffs vigorously assert that the Final Rule does not target “deceptive speech” and that, therefore, Zauderer does not apply. (PI. Reply at 3-9.) To this end, Plaintiffs argue that the agency never said anything about prevention of consumer deception during the rule-making process, so its attempt to do so now qualifies as the type of classic “post hoc rationalization” that the Court should not accept. (Id. at 4.) In addition, Plaintiffs maintain that RJR’s statement that “the government [cannot] seek review under the lenient Zauderer standard absent a showing that the advertisement at issue would likely mislead consumers,” RJR, 696 F.3d at 1214, must be taken at face value, and that the agency has not made the requisite “showing” of deception. (PL Reply at 7; see also Hr’g Tr. at 8:1-20, Aug 27, 2013, ECF No. 46.) Defendants, on the other hand, rely largely on Spirit Airlines to argue that the ambit of the “consumer deception” required to invoke Zauderer is not nearly as narrow as Plaintiffs claim. The agency essentially maintains that common sense demonstrates that compelled disclosure of production steps targets misleading speech and consumer confusion insofar as it corrects aspects of the 2009 COOL Rule that led retailers to use misleading labels, such as the allowance for commingling. (See Def. Br. at 32-34 (noting that “the Secretary promulgated the 2013 Final Rule to correct discrepancies under the prior regulation that led to potentially misleading labels”).) Similarly, Defendant-Intervenors contend that “[l]ike the DOT rule [at issue in Spirit Airlines ], the Final Rule was targeted at preventing consumer confusion in the marketplace,” and that “the legislative history of the COOL statute and the voluminous public comments on the 2003 and 2009 rulemaking demonstrate that consumers were being confused.” (Int. Br. at 11.) Against the backdrop of RJR and Spirit Airlines, the Court concludes that the production step labeling mandated by the Final Rule is the type of disclosure requirement subject to review under Zauderer’s “reasonableness” standard. As a preliminary matter, it is undisputed, and the Court agrees, that the Final Rule mandates “purely factual and uncontroversial” disclosures about where an animal was born, raised, and slaughtered, Zauderer, 471 U.S. at 651, 105 S.Ct. 2265, and thus satisfies this prerequisite to Zauderer’s application. Furthermore, with respect to the “consumer deception” aspect of Zauderer’s applicability, Spirit Airlines clearly indicates that Plaintiffs are wrong to insist that the agency was required to articulate specifically that the Final Rule was targeting consumer deception in order to invoke review under the Zauderer standard. Rather, under Spirit Airlines, the likelihood of deception need only be based on “experience” and “common sense.” And here, just as in Spirit Airlines, the “likelihood of deception is hardly ... speculative.” See id. at 413 (internal quotation marks and citation omitted). Prior to the enactment of the Final Rule, the allowance for commingling all but ensured that certain muscle cut commodities would carry misleading labels. As the agency points out, under the 2009 COOL program, if ninety-nine cows that were born, raised, and slaughtered in the U.S. were commingled with one cow that was born in Mexico and raised and slaughtered in the U.S., all resulting muscle cuts would be labeled “Product of the United States and Mexico.” (Def. Br. at 33.) Moreover, retailers had no obligation to provide any of the details regarding which steps of the production process happened where, and for muscle cuts from animals with multiple countries of origin, retailers were permitted to list the countries in any order. (Id. at 17-18.) Under these circumstances, the Court has no trouble concluding that experience and common sense dictates that there was a likelihood of consumer confusion under the prior COOL program. Moreover, even if Plaintiffs are correct that Zauderer requires an affirmative showing of consumer confusion as the basis for the disclosure requirement, the agency appears likely to be able to satisfy that burden here. When it issued the Final Rule, the agency explicitly stated that it was requiring the disclosure of production step information to provide consumers with “more specific information on which to base their purchasing decisions,” and also to “ensure [that] label information more accurately reflects the origin of muscle cut covered commodities.” See Final Rule, 78 Fed.Reg. at 31,375. Public comments that the agency relied on in crafting the Final Rule indicated that the disclosure requirement “makes labels more informative for consumers,” id. at 31,369, and the Final Rule also specifically dictates how production step information is to be presented to consumers using language that indicates that consumer confusion was the major driver behind the rule’s promulgation. See, e.g., id. (“Therefore, under this final rule, abbreviations for the production steps are permitted as long as the information can be clearly understood by consumers.”). Thus, although the agency may not have used the specific words “deceive” or “mislead” when explaining the purpose of the production step disclosure requirement, the Final Rule sufficiently establishes that the regulation was intended to address the possibility of consumer confusion regarding the origin of covered commodities. Consequently, this Court concludes that the Final Rule should be reviewed under the Zauderer standard. Having concluded that Zauderer, and not Central Hudson, applies, the Court now turns to an assessment of Plaintiffs’ likelihood of success on the merits of their First Amendment claim. Under Zauderer, the government need only show that the compelled disclosure at issue is “reasonably related to the [government’s] interest in preventing deception of consumers.” Zauderer, 471 U.S. at 651, 105 S.Ct. 2265. This standard of review is unquestionably lenient; indeed, the D.C. Circuit has explained that the Zauderer standard is “akin to rational-basis review.” RJR, 696 F.3d at 1212. Not surprisingly, the parties differ as to whether the Final Rule passes muster even under the Zauderer standard. While Defendants maintain that the Final Rule easily satisfies Zauderer (Def. Br. at 34-35), Plaintiffs argue that the Final Rule’s production step disclosure requirement fails this lenient test primarily because, in Plaintiffs’ view, compelled disclosure of production step information imposes burdens far in excess of any marginal possibility of consumer confusion that is alleviated by the rule. (PI. Reply, at 11-12.) In other words, from Plaintiffs’ perspective, the harm (i.e., the confusion that the rule is supposedly designed to address) is not adequately defined (id. at 11),. and the production step disclosure requirement is not only too costly relative to that ill-defined problem, it purportedly causes as many labeling inaccuracies as it cures (id. at 11-12). Plaintiffs’ arguments in this regard are not likely to be persuasive. First, to the extent that Plaintiffs’ argument rests on the proposition that the production step disclosure requirement is too “burdensome” to be reasonably related to the government’s interest in preventing consumer confusion, Plaintiffs appear to conflate the burden that they claim the Final Rule places on their finances with the burden it places on their speech. (See id.; see also PL Br. at 2 (asserting that the agency’s interest in compelling disclosure of production step information “is far outweighed by the onerous burdens imposed by the Final Rule”).) In the First Amendment context, it is the burden on speech, not pocketbook, that matters. See Milavetz, 559 U.S. at 250, 130 S.Ct. 1324 (“Unjustified or unduly burdensome disclosure requirements offend the First Amendment by chilling protected speech.”). Moreover, it is well established that, when the compelled speech is commercial and purely factual in nature, the speaker’s First Amendment rights are not unduly burdened “ ‘as long as [the] disclosure requirements are reasonably related to the [government’s] interest in. preventing deception of consumers.’ ” Milavetz, 559 U.S. at 250, 130 S.Ct. 1324 (quoting Zauderer, 471 U.S. at 651, 105 S.Ct. 2265); see also supra n. 14. Second, Plaintiffs’ excess-burden argument essentially attempts to graft a “tailoring” requirement onto the reasonableness standard the Supreme Court has articulated. But Zauderer’s reasonableness inquiry contains no tailoring requirement; rather, it requires only that a regulation such as the one at issue here be reasonably related to the government’s interest in preventing consumer deception. See RJR, 696 F.3d at 1212. Here, there is clearly a reasonable relationship between the government’s interest in preventing consumer confusion about the origins of muscle cut meat, on the one hand, and the required disclosure of specific production step information, on the other. Accordingly, the Final Rule satisfies the reasonableness standard articulated in Zauderer, and the Court finds that Plaintiffs’ First Amendment challenge is unlikely to be successful. B. Plaintiffs’ AMA Claim As a second basis for challenging the Final Rule, Plaintiffs argue that the rule contravenes the will of Congress in two respects. First, Plaintiffs maintain that the Final Rule exceeds the authority that the COOL statute grants to the AMS with respect to the eountry-of-origin labeling program because it requires retailers to specify where an animal was “born, raised, and slaughtered,” which, according to Plaintiffs, “the COOL statute does not permit.” (Compl. ¶ 82.) Second, Plaintiffs argue that the Final Rule impermissibly bans commingling practices — a ban that, according to Plaintiffs, clearly exceeds the bounds of the agency’s limited statutory authority to regulate labels. (See PL Br. at 32 (“Congress did not give AMS authority to dictate how to produce and package meat.”).) In defense of the Final Rule, the AMS and Defendant-Intervenors argue that the agency’s action is entitled to deference because the COOL statute does not clearly prohibit regulations that require the more detailed label information required under the Final Rule. (Def. Br. at 10-15; Int. Br. at 13-17.) Moreover, Defendants maintain that Congress specifically authorized the agency to promulgate regulations that are consistent with the legislature’s intent to provide consumers with more specific country-of-origin information, and in the absence of any express prohibition, the commingling ban permissibly furthers that intention. (Def. Br. at 18.) Plaintiffs’ statutory authority arguments implicate the familiar two-step Chevron standard. See Chevron, U.S.A, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Supreme Court has long held that “if the statute speaks clearly ‘to the precise question at issue,’ we ‘must give effect to the unambiguously expressed intent of Congress.’ ” Barnhart v. Walton, 535 U.S. 212, 217-18, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002) (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). If, however, “the statute ‘is silent or ambiguous with respect to the specific issue,’ we must sustain the Agency’s interpretation if it is ‘based on a permissible construction’ of the [statute].” Id. at 218, 122 S.Ct. 1265 (citations omitted). The Court’s task here, then, is to examine the COOL statute for indicia of congressional intent in light of Plaintiffs’ contentions and to determine whether Plaintiffs are likely to succeed in claiming that the agency lacked statutory authority to promulgate the Final Rule. 1. Point-of-Processing Labeling The first aspect of Plaintiffs’ statutory challenge is their assertion that the COOL statute unambiguously prevents the AMS from requiring muscle cut retailers to affix what Plaintiffs call “point-of-processing” labels (PI. Br. at 25-30) — ie., labels that identify the specific geographic locations where the animal that was the source of the muscle cuts was “born, raised, and slaughtered.” (Id.) Although Plaintiffs struggle valiantly to persuade the Court that they will be able to surmount the first Chevron hurdle with respect to this statutory contention, the text and structure of the COOL statute present obstacles that appear to be too great for Plaintiffs to overcome. First and foremost, Plaintiffs can point to no statutory provision that expressly prohibits the AMS from enacting regulations that mandate the disclosure of “born, raised, and slaughtered” information. This omission is significant because the COOL statute does expressly require tbe Secretary of Agriculture, who heads the AMS, to “promulgate such regulations as are necessary to implement” the law. 7 U.S.C. § 1638e(b). (See also Def. Br. at 18 (arguing that the Secretary has broad discretion to promulgate rules “necessary to implement” the COOL statute).) In the absence of any statutory prohibition limiting the agency’s power to dictate the disclosure of production step information, Plaintiffs maintain that the statute’s text nevertheless clearly establishes Congress’s intent to leave no room for the agency to do so. Plaintiffs’ argument in this regard focuses on the statute’s prescriptions regarding which country constitutes the “country of origin” for certain covered commodities under specified circumstances. For example,. Plaintiffs read the language of 7 U.S.C. § 1638a(a)(2)(C) to mandate that the country of origin for meats that fit into Category C will be “two places only — the country from which it was imported and the United States” (PI. Br. at 26), and thus, Plaintiffs argue that Congress could not have intended for the production steps to be revealed because, in the Category C instance, “the animal’s ‘country of origin’ has nothing to do with where it was born or raised.” (Id.) Plaintiffs perceive a similar disconnect between what the statute says about the country of origin and a point-of-processing label requirement when they interpret the statutory provision pertaining to Category A muscle cuts. Plaintiffs argue that the fact that Congress permits the Category A designation to be made with respect to muscle cuts derived from animals “present in the United States on or before July 15, 2008” — without regard for where such animals were born, raised, or slaughtered— means that Congress “could not have intended origin information to be conveyed through production-step details.” (Id. at 26-27 (analyzing § 1638a(a)(2)(A)).) And Plaintiffs make the same point-of-processing prohibition point with respect to Category D muscle cuts, because § 1638a(a)(2)(D) states that the country of origin is “a” country that is “other than the United States,” and, in Plaintiffs’ view, this prescription is “incompatible with a point-of-processing scheme, since an animal may not be born, raised, and slaughtered all in one place.” (PI. -Br. at 27.) Plaintiffs’ statutory arguments are likely to be unavailing for several reasons. First of all, Plaintiffs rely heavily on, and seek to advance, the notion that when Congress speaks to a matter in any respect, an agency is thereby prohibited from building upon what the statute requires even in the absence of an express prohibition. In this regard, Plaintiffs ardently maintain that Congress’s decision to determine the acceptable “country of origin” designation for animals of different backgrounds unambiguously evidences its intent to prevent the AMS from requiring that retailers inform consumers of any additional origin-related information. (See PL Br. at 29 (reasoning that “COOL labels must not specify each point of processing, from birth to raising to slaughter, because not every animal’s statutorily defined ‘country of origin’ includes those production steps”); see also id. at 28 (“[W]hile Congress defined ‘country of origin’ differently for separate categories of meat, with some categories encompassing an animal’s country of birth or raising ... the statute’s language and structure make clear that labels must not list this information by detailing each production step.”).) But such extrapolation — ie., that because Congress mandated that the country of origin be disclosed, and went further to define the country of origin in particular (and sometimes inconsistent) circumstances, such information is obviously the only permissible disclosure — is rarely successful. See, e.g., Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 219, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009) (finding that, where Congress mandated the exact level of discharge of pollutants in one provision of a regulatory scheme, the agency retained discretion to determine discharge amounts in other contexts); see also Catawba Cnty., N.C. v. EPA, 571 F.3d 20, 36 (D.C.Cir.2009) (“When interpreting statutes that govern agency action, we have consistently recognized that a congressional mandate in one section and silence in another often ‘suggests not a prohibition but simply a decision not to mandate any solution in the second context, i.e., to leave the question to agency discretion.’” (quoting Cheney R.R. Co. v. ICC, 902 F.2d 66, 69 (D.C.Cir.1990) (emphasis omitted))). Moreover, and perhaps even more to the point, in each textual instance that Plaintiffs point to, rather than indicating that the statutorily-defined country of origin is the sole bit of information that may properly appear on the labels of muscle cut commodities, Congress appears to be engaged in the more fundamental task of developing a uniform system for determining which geographic location qualifies as the “country of origin” for designation purposes in any given case. For example, Congress tells retailers that in order to designate a muscle cut commodity as a United States product exclusively (Category A), the retailer must ensure that the animal from which the cuts were derived was “exclusively bom, raised, and slaughtered in the United States.” 7 U.S.C. § 1638a(a)(2)(A)(i). This says nothing about the content of the required disclosure with respect to such an animal. And it certainly does not preclude the AMS from determining that, in order to best inform consumers about the origins of a .Category A muscle cut commodity pursuant to the statute, the label affixed to any such muscle cuts package must convey something to the effect of “Born, Raised, and Slaughtered in the USA.” The same is true of Categories C and D, and Plaintiffs’ reading of those provisions is similarly unpersuasive. Plaintiffs insist that Congress intended its requirements about eountry-of-origin designations in these circumstances to serve as a prohibition against point-of-processing labeling. (See PI. Br. at 27.) But nowhere in those statutory provisions does Congress purport to address the content of the disclosure that a retailer is required to make to consumers with respect to the muscle cut categories that the statute creates. Instead, just as with Congress’s clearly stated intention to establish which types of animals are properly designated as Category A, the language of subparagraphs (C) and (D) reads much more like Congress is sorting livestock-explaining which animals fall into which categories based on factors such as where they were born, raised, or slaughtered; whether they have been imported into the U.S. for immediate slaughter; or whether they were processed before they were imported — and not like Congress is making pronouncements about what information retailers can be required to disclose to consumers, as Plaintiffs strenuously maintain. In pressing for the likely viability of their interpretation of the COOL statute, Plaintiffs also cannot escape the fact that the North Star of any exercise of statutory interpretation is the intent of Congress, as expressed in the words it uses. Cf. Am. Fed’n of Labor & Congress of Indus. Orgs. v. FEC, 333 F.3d 168, 180 (D.C.Cir.2003) (“[I]nquiry into ... Congress’s intent proceeds, as it must, from ‘the fundamental canon that statutory interpretation begins with the language of the statute itself.’ ” (quoting Butler v. West, 164 F.3d 634, 639 (D.C.Cir.1999))). ■ In this respect, too, Plaintiffs textual argument withers when exposed to the guiding light of standard legislative drafting experience. That is, if Congress truly had intended that a retailer with muscle cuts from an animal properly designated as Category A, B, C, or D could only be required to inform consumers of the covered commodity’s statutorily-established country of origin designation— and nothing more — surely it would have found a clearer way to express that intention. Indeed, Congress does precisely that elsewhere in this same statute, by inserting specific provisions that speak directly to the information that a retailer can, and cannot, be required to gather and to disclose. See, e.g., § 1638a(c)(2) (stating, in regard to covered commodities “already individually labeled for retail sale regarding country of origin,” that “the retailer shall not be required to provide any additional information to comply with this section” (emphasis added)); id. § 1638a(d)(2)(B) (“The Secretary may not require a person that prepares, stores, handles, or distributes a covered commodity to maintain a record of the country of origin of a covered commodity other than those maintained in the course of the normal conduct of the business of such person.” (emphasis added)). These textual reminders that Congress typically says what it means when it seeks to limit an agency’s regulatory authority undermine Plaintiffs’ argument that Congress intended to — but somehow neglected to — include like language regarding the disclosure obligation at issue here. The best Plaintiffs can do to support their contention that the statute prohibits the AMS from requiring point-of-processing labels is to maintain that Congress’s selective use of the word “shall” in the COOL státute evidences its intention that the prescribed country-of-origin designations be the only information that is disclosed to consumers pursuant to the statute. (PL Br. at 29-30.) This argument homes in on the statutory text as follows. In subparagraph (C), Congress says that a retailer whose muscle cuts will be derived from an animal that has been imported into the United States for immediate slaughter “shall designate the origin of such covered commodity as — (i) the country from which the animal was imported; and (ii) the United States,” 7 U.S.C. § 1638a(a)(2)(C)(emphasis added), so who is the AMS to require retailers of Category C meats to inform consumers of the places where the animal was born, raised, and slaughtered? (See PL Br. at 26.) Of course, this reading assumes, without good reason, that a retailer’s duty to “inform consumers ... of the country of origin” in subsection (a)(1) of the statute is equivalent to subsection (a)(2)’s duty to “designate” the country of origin; and, indeed, Plaintiffs’ entire argument appears to be based on conflating what Congress permits (or requires) in regard to designating the country of origin, on the one hand, with the particular statement that a retailer can (or must) make when informing consumers about the origin of the muscle cuts package, on the other. (See, e.g., Pl. Br. at 26 (asserting that the requirement to “inform” consumers of the country of origin cannot mean “the ‘countries of birth, raising, and slaughter’ ” because, in regard to Category C meat, for example, Congress mandated that “the retailer ‘shall designate the origin ... as (i) the country from which the animal was imported; and (ii) the United States’ — period”).) It is perfectly reasonable, however, to interpret the COOL statute as creating a retailer obligation that has two different aspects: the duty to inform consumers of the covered commodity’s country of origin, which is preceded by the distinct, threshold responsibility of designating (i.e., determining) which country qualifies as the country of origin with respect to a given commodity. There are plenty of hints in the statutory language that this may be precisely how Congress intended for its subsection (a)(2) provisions to be read. The most prominent textual clue that the statute’s instructions regarding designation in subsection (a)(2) do not necessarily limit the scope of the information that retailers are required to give consumers pursuant to subsection (a)(1). is, of course, the fact that Congress used two different terms — “inform” and “designate” — in these consecutive subsections of the statute. See Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n. 9, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (noting that the use of different words in a single statute presumably means that Congress intended that the different words had different meanings and effects); Vonage Holdings Corp. v. FCC 489 F.3d 1232, 1240 (D.C.Cir.2007) (“[W]e have repeatedly held that where different terms are used in a single piece of legislation, the court must presume that Congress intended the terms to have different meanings.” (internal quotation marks and citations omitted)). And these two words can have very different meanings. Merriam-Webster’s collegiate dictionary explains that to “inform” is to “impart information or knowledge,” whereas to “designate” means to “to distinguish” or “to indicate and set apart for a specific purpose.” Merriam-Webster’s Collegiate Dictionary 313, 599 (10th ed.1999). That Congress used two terms that can mean different things in subsections (a)(1) and (2) is indicative of a lack of congressional intent that “inform” and “designate” be construed as one-and-the-same, as Plaintiffs suggest. Also seemingly relevant to. a determination of what Congress intended when it used “inform” in subsection (a)(1) and “designate” in subsection (a)(2) is the fact that the concept of designating the country of origin of a commodity apart from labeling that commodity is employed elsewhere with respect to a similar regulatory and statutory framework. Thus, it would be reasonable to conclude that, when Congress laid out in the COOL statute all of the circumstances under which retailers can properly “designate” the country of origin of an animal that will be processed for sale as a muscle cut commodity, it intended to make a statement about how to distinguish between countries for the purpose of determining which country constitutes the animal’s country of origin under the specified circumstances, which says nothing at all about what information the retailer may be required to convey pursuant to the statutory obligation to inform consumers about the animal that originated from that country or countries. To be sure, it is also possible to construe the term “designate” to mean “specify” or “stipulate” — an alternative interpretation that would permit an inference that subsection (a)(l)’s duty to inform consumers is, in fact, the equivalent of a retailer’s obligation to designate the country of origin for the purpose of subsection (a)(2). Indeed, if by “designate” Congress meant “specify,” then the statutory terms “inform” and “designate” overlap, giving some credence to Plaintiffs’ argument that Congress’s pronouncements about what a retailer can (or must) do when designating the country of origin governs the scope of the information that can be provided to consumers under the terms of the COOL statute. Nevertheless, the reasonable possibility that Congress meant the two terms to be construed differently as explained above remains, so, at most, any conceivable overlap only manages to render the statute ambiguous. See United States v. Villanueva-Sotelo, 515 F.3d 1234, 1237 (D.C.Cir.2008) (finding a statute ambiguous because it was subject to different interpretations); McCreary v. Offner, 172 F.3d 76, 82 (D.C.Cir.1999) (finding a statute ambiguous because it was “reasonably susceptible to more than one meaning”). This is not good news for Plaintiffs: ambiguity in such a critical statutory term would require this Court to proceed to evaluate the permissibility of the agency’s interpretation under Chevron’s step two, and the arduousness of the second step of the well-worn Chevron trek is so well established that Plaintiffs are hard-pressed here to provide the necessary assurances of their likely success on the merits if such analysis is required. Cf. Sherley v. Sebelius, 644 F.3d 388, 389, 395-98 (D.C.Cir. 2011) (vacating the district court’s imposition of a preliminary injunction because plaintiffs were unlikely to prevail given the ambiguity of the statute and the agency’s reasonable interpretation); Cardinal Health, Inc. v. Holder, 846 F.Supp.2d 203, 226-28, 230 (D.D.C.2012) (denying a preliminary injunction where plaintiff was unlikely to succeed on the merits in part because the statute was ambiguous and the agency’s interpretation was not plainly erroneous). Chevron’s step two requires the Court to defer to an agency’s interpretation of a statute unless that interpretation is impermissible. Chevron, 467 U.S. at 843, 104 S.Ct. 2778; see also Coalition for Common Sense in Government Procurement v. United States, 707 F.3d 311, 317 (D.C.Cir.2013) (noting that “[t]he Chevron step two question” is “whether the [agency’s] rule reflects a reasonable interpretation of’ the relevant statute). Here, the AMS stated in the Final Rule itself, and reiterated in its briefs, that it considers the changes that the rule makes to the previous labeling requirements to be “consistent with the provisions of the statute.” Final Rule, 78 Fed.Reg. at 31,368. Pointing out that the COOL statute expressly “provides authority for the Secretary to promulgate regulations necessary to implement the COOL program,” id. at 31,370, the agency also explained the basis for this interpretation: [t]he statute contemplates four different labeling categories for meat, based on where the animal was born, raised, and/or slaughtered. This final rule preserves these four different labeling categories for meat and is consistent with the labeling criteria set forth_in the statutory scheme. Id. There is nothing plainly wrong or impermissible about this statutory interpretation; indeed, based on the analysis above, the agency’s view of the statute as permitting the point-of-processing labeling structure set out in the Final Rule is entirely reasonable. In any event, on summary judgment or at trial, the Court would be required to give the agency’s interpretation great deference at this point in the Chevron analysis, see Vill. of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 667 (D.C.Cir.2011), which means that Plaintiffs’ contention that the COOL statute prohibits production step labeling would likely fail. 2. Commingling Plaintiffs’ second statutory challenge is their assertion that the AMS exceeded its statutory authority when it issued a Final Rule that prohibits the longstanding practice of commingling. (Compl. ¶ 84; see also PI. Br. at 25 (arguing that “the Final Rule’s bar on commingling extends beyond the limited authority Congress granted the AMS to regulate product labels by instead dictating how meat is processed and packaged in the first instance”).) As noted in Section II.B above, commingling involves processing animals from different countries of origin together during a single production day and labeling the resulting muscle cuts commodity with all of the various countries where the animals originated. Plaintiffs maintain that the COOL statute expressly authorizes commingling (PI. Reply at 17), and also that the AMS, which is an agency that regulates labeling and advertisements, went far beyond its mission when it promulgated a rule that brings commingling to an end and thereby forces regulated entities to “restructure the[ir] production, distribution, and packaging systems” (Compl. ¶83; see also PL Br. at 30-32). For the following reasons, this argument lacks merit, and is therefore unlikely to succeed. First, the term “commingling” does not appear anywhere in the text of the COOL statute. This omission in and of itself renders doubtful Plaintiffs’ assertion that Congress clearly intended to address, and to protect, the practice. Cf. Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 341, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) (“We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply....”). Certainly, if Congress was as supportive of commingling as Plaintiffs insist, one would have expected the COOL statute’s drafters to have inserted language to that effect. Nor is even the concept of commingling unambiguously present in the statutory text, despite Plaintiffs arguments to the contrary. {See Pl. Reply at 16-17.) A straightforward reading of the statutory provision related to Category B muscle cut commodities makes this evident. That provision, which is entitled “Multiple Countries of Origin” (and is thus the most logical place to look for evidence that Congress intended to preserve commingling) states: (B) Multiple countries of origin (i) In general A retailer of a covered commodity that is beef, lamb, pork, chicken, or goat meat that is derived from an animal that is— (I) not exclusively born, raised, and slaughtered in the United States, (II) born, raised, or slaughtered in the United States, and (III) not imported into the United States for immediate slaughter, may designate the country of origin of such covered commodity as all of the countries in which the animal may have been born, raised, or slaughtered. 7 U.S.C. § 1638a(a)(2)(B)(i). Plaintiffs argue that this provision indicates Congress’s intent to make allowances for the kind of multiple-country labels that result from the commingling practice (Pl. Reply at 17), but close examination reveals that this statutory provision expressly refers to the proper designation of “an ” animal or “the animal,” making clear that it relates solely to the threshold question of how to designate muscle cuts that derive from “an” animal that, itself, is of mixed origin. And Congress’s guidance on. that point says nothing about the separate and entirely different question of which country-of-origin applies if a retailer wants to market a muscle cuts package that contains a mix of cuts derived from multiple animals, where the animals have different Country-of-origin designations — ie., the commingling question. In other words, the statute’s text plainly focuses on the appropriate designation for “an” animal that has multiple potential countries of origin; it does not, and presumably never intended to, address the different issue of how to discern the country of origin of a mixed muscle cut commodity; that is, a package of muscle cuts that are derived from more than one properly-designated animal, when the relevant animals have different countries of origin. In the absence of any clear congressional guidance on the mixed muscle cuts situation, the AMS previously permitted retailers who had commingled animals with different country-of-origin designations into a mixed muscle cuts package to list all of the relevant countries on the label of that commodity, and to list those countries in any order. See 2009 COOL Rule, 74 Fed.Reg. at 2659; see also id. at 2670 (recognizing that “[cjommingling like products is a commercially viable practice that has been historically utilized by retailers”). This means, of course, that the much-heralded practice of commingling animals for slaughter and then affixing a multiple-country label to identify all of the applicable countries of origin is likely a creature of regulation from its inception, not a product of the statute, as Plaintiffs maintain. And what the agency once giveth, it can surely taketh away without running afoul of the authorizing statute. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 156-57, 120 S.Ct. 1291, 146 L,Ed.2d 121 (2000) (noting that “an agency’s initial interpretation of a statute that it is charged with administering is not “carved in stone” ” and that agencies “must be given ample latitude to adapt their rules and policies to the demands of changing circumstances.” (internal quotation marks and citations omitted)). Undaunted, Plaintiffs insist that Congress’s use of the word “may” in subparagraphs (A) and (B) — when contrasted with its use of the term “shall” in subparagraphs (C) and (D) — is the key to discerning a congressional intent to “preserve commingling flexibility.” (PI. Reply at 17; see also Hr’g Tr. at 14:7-10.) To this end, Plaintiffs assert that “may” means that Congress clearly intended to provide meat packers and retailers with a commingling-related choice in regard to making eountry-of-origin designations, and with respect to subparagraph (B) in particular, Plaintiffs highlight a Senate report that appears on first blush to confirm this conclusion. (See PI. Reply at 17 (quoting S.Rep. No. 110-220, at 198 (2007) as stating that “the ‘may’ used in subsection (B) is to provide flexibility to packers when working with livestock from multiple countries of origin”).) Plaintiffs are correct that the text of subsection (B) does appear to provide a choice, just not the one for which Plaintiffs advocate. Focusing again on the statutory language quoted above, subparagraph (B) authorizes a retailer who has “an” animal that has multiple countries of origin — e.g., born in Argentina, raised in Mexico, and slaughtered in the United States — to choose to designate “all of the countries of origin in which the animal may have been born, raised, or slaughtered.” 7 U.S.C. § 1638a(2)(B)(i)(III). In the alternative (hence, the “may”), a retailer can presumably opt to designate just one country of origin with respect to such an animal (so long as that one country is not the United States per § 1638a(a)(2)(A)). Given that the COOL statute authorizes the Secretary to conduct audits and also requires detailed recordkeeping to permit “verification of the country of origin of covered commodities,” see id. § 1638a(d)(2), the choice to designate a single country of origin for an animal pursuant to subparagraph (B) is a meaningful one. But it is a choice that Plaintiffs’ commingling arguments completely obscure. Indeed, contrary to Plaintiffs’ assertions, subparagraph (B) refers to a single animal — it says nothing about the designation of “source animals” (plural) (PI. Reply at 17) — nor does it come anywhere near to conveying that “retailers ‘may’ use a multiple-country-of-origin label that designates all of the countries in which the source animals for commingled meat ‘may have been born, raised, or slaughtered,”’ as Plaintiffs maintain. (Id. (quoting 7 U.S.C. § 1638a(a)(2)(B)).) Yet the provision nevertheless provides “flexibility to packers when working with livestock from multiple countries of origin,” S.Rep. No. 110-220 at 198, because a packer who is working with “an” animal from multiple countries of origin “may” choose to designate all of that animal’s applicable countries as the country of origin or, presumably, may opt to designate only one of them. The bottom line is this: even if Plaintiffs are correct that Congress secretly wished to preserve commingling and infused sub-paragraph (B) with that intention, the most plausible reading of what Congress actually wrote is that the statute gives retailers a choice when designating an animal that has mixed countries of origin— either designate all of the countries or select one of the non-U.S. jurisdictions as the country of origin. The provision neither expressly addresses commingling nor does it necessarily preserve any commingling related choice. Plaintiffs’ other commingling arguments relate to subparagraph (A) and are based on the same type of loose textual analysis. Here, Plaintiffs maintain that Congress deliberately uses “may” rather than “shall” in subparagraph (A) in order to convey that retailers who have livestock that would otherwise be entitled to be labeled “product of the USA” may choose to affix a mixed-country label to the muscle cuts of such livestock instead. (See PI. Br. at 32; see also Hr’g Tr. at 14:7-15:8.) This labeling choice would occur, Plaintiffs argue, when a retailer opts to commingle muscle cuts from pure U.S. a