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Control of Informal Agency Rulemaking by Congress and the President

Nicholas W. Fels, Natural Resources Administrative Law and Procedure (1981)

It has become a commonplace to observe that informal rulemaking is the way that the federal regulatory agencies conduct their most important business.1 The reasons are not hard to identify. For the agency, such rulemaking has the advantage of efficiency and relative simplicity. A single rule of general application disposes of innumerable individual cases. Moreover, the notice-and-comment procedures provided under the Administrative Procedure Act2 institutionalize the regulatory trial balloon; they allow the agency to broach an idea and learn pretty well how it will be received, without necessarily embracing it. Best of all perhaps, from the standpoint of the administrator, he, rather than the participants' lawyers, controls the pace of things. Thus, whether or not one agrees with Professor Davis's view of informal rulemaking as a consummate achievement of modern political science3, it is pretty clear that such rulemaking is in the ascendency.

It is no coincidence that even while rulemakings have taken on greater importance as a means of making policy, both the White House and the Congress have sought increasingly to influence, or even to control, the outcome of these proceedings. Regulatory rulemaking is, to paraphrase the expression, simply too important to be left to rulemakers.

There are, of course, the traditional means by which the legislators and Preside