concurring:
While concurring in the result reached above and with most of Judge Becker’s analysis and reasoning, I feel constrained to add the following comments.
I am troubled by the unqualified assertion that there is nothing in the APA to warrant employment of the “substantial impact” test to classify interpretative and legislative rules. Whether a regulation is a mere “interpretation” under some circumstances cannot be evaluated confidently without consideration of its effect upon the industry and the public from the viewpoints of essential fairness, due process, departure from established practices and financial or other consequences. Nor do I believe the test is as simple as the ascertainment of what administrative rulings would require a legislative grant from Congress, all others necessarily being interpretive. I do not so understand General Electric Co. v. Gilbert, vis-a-vis Batterton v. Francis, despite the quotation from Professor Davis concerning the former. Batterton involved the particularized delegation of legislative authority.The point in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Counsel, was that rulemaking procedures beyond the concededly applicable requirements of APA may not be insisted upon by the courts, not that the necessity of minimum rulemaking procedures could be avoided under the guise of “interpretations” to the extent applicable. Even as to the issue involved there the. possibility of exception under some circumstances was noted. The abrasion of due process, principled fairness, long standing practices, and other impacts may be more relevant to the determination of whether a purported “interpretation” is really “legislative” in character than the detailed procedures through which admit*1103tedly essential rulemaking is to be handled by an agency.
Nor do I agree that the propriety of an agency “interpretation” necessarily is measured by what a court itself might do in the interpretation of a statute or regulation. Courts may have no recourse but to interpret these in accordance with the implied intent of Congress or as an alternative to a declaration of invalidity for constitutional infirmity. An agency often has greater flexibility and wider duty, including the obtaining of the input of additional viewpoints, practical as well as legal, through observance of rulemaking procedures to the extent mandated by the APA and, within its terms, by the FEAA.
The qualifications expressed above are not decisive in this particular case — if, indeed there is anything in Judge Becker’s opinion intended to be irreconcilable with them. Notwithstanding some cross currents engendered by a considerable stirring of waters in the arguments, no significant impacts appear to operate against the ruling in question. And a holding that “a well which produces crude petroleum” means, as contemplated by the properly adopted and subsisting regulations and in view of the seminal statute, a well that produces or yields such petroleum directly rather than one which may be utilized as a part of a system to obtain indirectly crude petroleum from a producing well, seems essentially the sort of an interpretation that must have been intended by the APA exception to the rulemaking requirement.