Formal Records and Informal Rulemaking

Administrative law, it is said,' has entered an age of rulemaking.In part, the older agencies have turned to this approach of their own accord as the burden of existing responsibilities has increased. 2Far more important, Congress has spurred the trend by creating new agencies with new responsibilities.These agencies could not possibly discharge their sweeping mandates to regulate pollution, enery, 4 occupational health and safety, 5 coal mine safety and consumer product safety 7 (to give only a few examples) through case-by-case adjudication in formal hearings.But Congress has not trusted nature to see to it that rulemaking rather than adjudication is chosen.In many cases, the regulatory statute explicitly provides that standards shall be set by rulemaking, though procedural protections exceeding the minimum required by due process or the Administrative Procedure Act (APA) ' may frequently be specified.The increased use of rulemaking has changed the whole structure t Attorney, Office of General Counsel, Environmental Protection Agency.The views expressed in this article are those of the author only and not necessarily those of