Abstract
When agencies want to compel private entities to act, they face a complex array of choices. The Administrative Procedure Act (APA) gives agencies a series of options for pursuing their preferred policy. At one extreme is the possibility of formal rulemaking. Formal rulemaking, requiring a quasi-judicial proceeding, is rarely used by agencies. It is extremely burdensome for them and, after a period of initial experimentation with the approach, agencies have largely abandoned it altogether. Legislation inevitably gives agencies discretion to make policy choices. Over the past half-century, informal rulemaking has become the preeminent way that agencies make these choices. As a result, there have been increasing attempts to proceduralize the informal rulemaking process so as to give it a greater sense of democratic accountability. It is important to note that the extent to which agencies will be dissuaded from using nonlegislative rules will vary with the burden imposed by the procedural reform addressing these documents.