Admin Law charts - Cortez - F2007.

doc
Posting created by Briana August on 6/25/2019 at 11:59:37 (Edited 6/25/2019 at 11:59:37) Print

Attached file: Admin Law charts - Cortez - [Link] Download / Download HTML Version

Overview of Admin Law and APAs

3 Major Objectives Cost-Benefit procedure. Of regulating BEHAVIOR and Government role.

of Course Efficiency and Effectiveness v. Adequate Protection of Private Interests.
Swift and economic action v. procedural protection of individual interest.
Agency Political accountability.
Do procedures ensure agency is effectively responsive to the body politic?
Are legislative and executive proper to check (monitor/balance/direct) Agency actions.
Rulemaking process mechanics.
Administrative law addresses some of the most fundamental questions in our democratic society:
How do we regulate behavior in an increasingly complicated world?
What is the proper role of government in our society?
How do we maintain the separation of powers between the legislative, executive, and judicial branches?
What rules govern the government?
What rights do citizens and other private parties have vis-à-vis the government?
What is the proper balance between the market and regulation?
Agency/Department/ Power delegated by statute – to Investigate, Prosecute, Create Law, Adjudicate, License, and Serve/disburse.
Commission/Board Regulatory – enforce. EPA
Benefactory – disburse social benefits. Soc. Security
Procedural Acts General and comprehensive– apply to all/most agencies. Fedl APAs copied by most States. ‘61/81 Model State
APAs APA.
Landmark 1946 – provides broad freedoms limited by only weak procedural requirements and Judicial Review.
A New Deal COMPROMISE
Agency Research and Publicity.
TechniquesTools Rulemaking. – statements that implement, interpret, or prescribe law or policy.
Licensing. – can be a barrier to entry and industry may capture agency and turn agency pwr against public.
Permits/clearance. - Permit limit dangerous activities. May raise cost, and allow undue influence of
Administrator
Investigation and Enforcement; Adjudication; Ratemaking; Judicial Review; Legislative and Executive review.
Types of Agencies Executive (Cabinet) and Independent (controlled by commission) – some blending.
Statutory authorization,
Guiding but with Broad/significant discretion,
Principals Courts have limited control over Agency action (must be clearly contrary to statutory authorization.)
Recurring Legal E, L or J type action?
Themes What source of law governs issue? Constitution, Fed or State Procedural Acts
Formalist (narrow/textual) v. or Functionalist (pragmatic; Agency is for convenience efficiency of Legislature)
approach to applying law.
Recurring Policy Fairness v. Efficiency balancing
Themes Find optimal balance between free market reign and regulations.
Cost-Benefit analysis.
Agencies are the technical expert in the field (by their purpose/origin)
Recurring Policy
Maintain Political accountability
Themes Agency capture by regulated industries
Watch for Who gives power to agency?
Has the Agency been captured?
Sources of Admin Federal: U.S. Const., U.S.C., ’46 APA, C.F.R., Fed. Register, Advisory Opinions, Guidance Documents.
Law Statutes: based on public input to Congress, for the U.S.C., iaw Const. per Court review/rulings.
Regulations: receive public input during Notice and Comment, in C.F.R. and Fed. Reg., iaw Statutes, reviewed by
Court to ensure not arbitrary and capricious and w/in scope of Statutory Authorization and Const.

Delegation of Legislative Power

Political Accountability; mechanisms to supervise the process of administration.

Non-Delegation Congressional power to delegate is Constitutionally limited to sustain –

Doctrine Separation of Powers and provide Checks and Balances (via limits on Agency discretion).
Art I §1 vests legislative power in Congress, but Art I §8 provides for “necessary and proper” authorizes “carrying
“effectively dead” [the laws] into execution.”.
Execution as an agent to ascertain and declare occurrence of an event that triggers the law is acceptable
delegation. Field v. Clark 1892 (Pres. tariffs) Functional.
Delegation with an “intelligible principle” Hampton p. 399 or a “primary standard” are required.
Fed. laws only twice found to violate Doctrine. Panama Refining v. Ryan 1935 & Schecter Poultry 1935 p400. (due
to lack of adequate standard in statute for Pres./Agency to follow.)
Congress standard must be ascertainable, but they aren’t confined to the least possible delegation of discretion.
Yakus ’44 p. 401 (“only an absence of standards” that would be “impossible to ascertain the will of Congress” is
invalid).
Formalist may say Standard must be in statute, but Functionalist may use “sufficient demarcation of the field”
via
Legislative History or the body of court rulings on the issue to determine Congressional intent of law.
Amalgamated Meat Cutters v. Connally ’71 p. 402.
Functions of Non-Delegation Doctrine:
- ensures Social Policy is created by Legislature
provides “intelligible principle” to guide use of delegated discretion
- provides a justicible standard by which courts can test agency exercise of delegated discretion.
Rehnquist position in Industrial Union AFL v. Am. Petrol. Inst. 1980 (OSHA Benzene levels) p405.
Standard must be set by Congress, not by Agency. American Trucking v. EPA 2001.
TAKE AWAY = Realistically, broad vague delegations may be inevitable in modern government –Non-Delegation
doctrine is effectively “dead.” Legislation is too burdensome to expect it to constantly keep up with modern rate
of change. Agencies may be held accountable indirectly too.
Elements Field is technical or Scope is large. Congress sets general policy and standard to be refined/applied by
Validating “experts.”
Delegation Necessity or extreme conditions. Industrial Union AFL v. Am. Petrol. Inst. 1980 (OSHA Benzene levels) p405.
Scope and specificity of delegation appropriate to rights affected - narrow 1st Amend. Shuttlesworth v. Birming.
p408 Fundamental rights should be protected by narrow
construction of the law. Kent v. Dulles passport p. 420.
Rule effects the goal of the legislation.
Some states - (FL) rulemaking authority is necessary but not sufficient – rule must be Reasonably Related to
purpose.
Does not infringe on Legislative Social Policy duty of cost-benefit weighing. Boreali v. Axelrod 1987 (PHC
smoking)
Follows Legislative history on issue v. starting from a clean slate.
Rule does not intrude on matters debated in, but not passed by Legislature.
Rule based on expertise of agency or contracted specialists.
Ultra-Vires “Beyond the Power” = keep the statute, but claim an Agency action/regulation is beyond the bonds of delegation.
Doctrine Avoids having to strike down the whole statute (which may generate appeal on numerous previous cases) by rulig
Agency action was beyond the scope authorized by the statue.
Allows judiciary to avoid generating conflicts between branches. Rust v. Sullivan (no HHS funds for abortion.)
Kent v. Dulles Construed statute narrowly to avoid holding statute unconstitutional under non-delegation doctrine.
Rust v. Sullivan ’91 p 421 Construed statute broadly to uphold the regulation against a constitutional challenge.
Boreali v. Axelrod NY ’87 p. 422. (no public smoking) Construed statute narrowly for separation of powers
reasons; cost-benefit analysis and policymaking are legislative functions. NOT a U.S. SC ruling.
Application of Ultra-Vires Doctrine is malleable.

Political Accountability; mechanisms to supervise the process of administration.

Delegation of Adjudicatory Power

Rulemaking v. Rulemaking: Affects society as a whole, or at least a class of persons, (E.g., EPA establishing a standard for
Adjudicating approving applications for developing wetland areas), Procedural due process generally does NOT apply.
Adjudication: Affects identifiable persons based on facts peculiar to each of them (E.g., EPA denying a builder’s
application for developing a wetland area), Procedural due process generally applies.
Rules applied to Agency vary depending on which role it is filling.
Society v. Individual.
Procedural Due Process must be given to Individual in Adjudication.
Legislative controls over agencies: Legislative veto, Congressional Review Act, Suspensive veto (states),
Oversight committees, Investigations and hearings, Budgets and funding measures, Lobbying and direct contacts.
Reasons for Agency may be more educated and efficient in handling matter. Adjudication may be specialized.
Legislature to Legislature has more control over Agency than over Courts.
delegate Promotes predictable, unified/consistent rulings which promote Agency unified policies.
Adjudication Avoid juries.
Legislators may prefer agency adjudications because they: Are speedier, Are more informal, Are less expensive,
Allow the use of an expert decisionmaker, Allow the use of specialized adjudicators, Allow the agency to develop
unified policies, Avoid judicial bias, or at least secure bias towards an agency, Avoid juries, Avoid expanding the
life-tenured federal judiciary.
but, Private Rights must be determined by Art. III Judges. No. Pipeline Constr. V. Marathon Pipe Line ’82 p 428.
CTFC v. Schor ’86 Delegation likely upheld when Art. III judicial review is available, and parties consented to the Agency
p.429 adjudication.
Constitutional delegation of adjudicatory functions to a non-Art. III body assessed by the purposes underlying the
Sep. of Powers requirements of Art. III = practical attention to substance v. doctrinaire reliance on formal
categories.
Few delegations of adjudicatory power to federal agencies are likely to violate Article III.
but, delegation of Adjudicatory power still more likely to be found unconstitutional than delegation of legislative
pwr.
O’Connor Factors Does delegation create a substantial threat to the Separation of Powers – ad-hoc 3 part balancing test: =
for Justifying Is agency exercising powers and jurisdiction normally vested in Art III courts. (di minimis/narrow OK, because
Agency there can be a District de novo review)
Adjudicatory Origin and Importance of Rights adjudicated. Private rights require close scrutiny, but requiring Art III court.
Jurisdiction Congressional purpose in giving adjudicatory power to Agency.
States Allowable Adjudicatory delegations vary from State to State.

Legislative Controls of Agency Actions

Most direct means is by specifying desires in enabling Act.

Congress Pwr to Includes: Legislative veto, Congressional Review Act, Suspensive veto (states), Oversight committees, Investigations
draft/Amend and hearings, Budgets and funding measures, Lobbying and direct contacts.
Legislative “Veto” Balances Executive power/control over Agency.
Retains the Legislature Control over specific regulations.
Chadha ’83 p. 442: Legislative Veto (textually) Unconst. for lack of Art. I bi-cameral passage and presentment required
of all Legislative acts (Const. only allows 4 uni-cameral acts). Powell concurrence cites narrower ground that INS has
assumed Art III court duties in violation of Separation of Powers and that unlike INS action which is reviewable by
Judiciary, Legislative Veto’s are not. Maintain some oversight not under political influence.
White dissents that veto is a prudential necessity (which does comply w/ Art. I.) to keep the Separate Powers balanced.
Powell view prevails today, Congrss may NOT remove officials of Exec/Admin functions. Bowsher v. Synar ’86 p.
455/89
Chada also applies to Rulemaking. Consumer’s Union v. FTC ’82 US Senate v. FTC ’83 p. 452.
Congress reserving rights/power to itself is concerning re Separation of Powers.
Congressional Variation on Legislative Veto, all Agency Rules are submitted to Congress and GAO for review before implemented.
Review Act ‘96 The “Major Rules,” Economically significant Rules (per OIRA Executive Order 12866) cannot take effect until 60
calendar days after submission to Congress.
Congress can block implementation via a joint resolution of disapproval (w/ bi-cameral passage & presentment), and
agency may not “reissue” “same” rule. Congress has only blocked one rule (OSHA) – and without any explanation.
Suspensive Vetoes Used in some States (due to limited sessions/influence & smaller staffing), suspends agency rule for a limited time.
p. 458-61. It’s hard to distinguish legislative from suspensive vetoes under Chadha, but Chadha ruling does not bind State
legislatures.
Validity varies by state/constitution.

Legislative State and federal legislative committees have jurisdiction over certain agencies and subjects; Committees and
Oversight their staff become well versed in the operations of the agencies they oversee.
Commities Two House committees have wide jurisdiction: Committee on Oversight & Government Reform, Energy & Commerce.
Investigations and Congress can subpoena Agencies. – Power of the Pulpit.
Hearings General Accounting Office evaluates regulatory programs.
Budgeting Most powerful control – the purse. Specific agency functions may be targeted.
Contact/Lobby Off-record contacts not subject to public scrutiny. Requiring status reports is valid, ex parte interference is not.

Executive Branch Controls over Agencies

Pres. and Governors

Powers Appointment. Removing officers. Oversight

Appointing Art. II § 2 cl. 2 = President nominates Officers of the US, Senate gives Advice and Consent; but, Congress may vest
Appointment of inferior Officers in President, Courts of Law, or Heads of Departments.
An Officer = one who exercises “significant authority.” Buckley v. Valeo ’76 p. 464. (FEC violates Const. because
Congress can NOT Appoint, and only an Executive can “enforce” law, Art. II §3.)
Inferior Officer = subject to removal by Executive Officer whose appointment is under Art II. § 2 cl. 2, duties are
limited in scope and (Special Prosecutor) jurisdiction, no guarantee of career position. Morrison v. Olson ’88 p.467.
Independent Agencies typically appoint staff on their own authority, w/ consult to White House.
Removing The executive branch has slightly more power to appoint than remove officers.
Cases have upheld “good cause” limits on removing officers.
Myers v. US ’26 p 474. Postmaster removal upheld because power to Remove is an incident of Executive Pwr to Appt.
Humphrey’s Executor v. US ‘35 p. 475 (FTC firing) unlike Meyers, Independent Agencies are more quasi-Legislative,
intended for more than just Executive duty, and thus removal is NOT at Executive’s discretion, but only for cause as
enabled by statute. Spawned growth of the Independent Agency – Fed. Resrv., SEC, Nuclear Reg. Comm., FCC,
etc.
Morrison v. Olson 1988 Congress limits removals to “good cause.” Maintain Sep. of Pwrs. where Exec. executes laws.
Rehnquist Majority says this limit does not impede Presidential duty, and is not giving power to Congress, and thus is
NOT a violation of Constitutional Separation of Powers. (The Independent Counsel does serve a function to keep some check
on Executive Branch abuse of power, and thus upholding the “good cause” limit is desirable. Congress could do it themselves,
but passing duty to Ind. Counsel takes direct political heat off of Congress)
Scalia dissent is Textually based, power to appoint includes power to remove – period. Like Myers. This ruling
replaces Exec. power clearly in Pres. w/ a balancing test of interference w/ Pres. duty based on uncertain standards.
Functionalist approach of Morrison reinforced in Mistretta v. US p. 490 with permissive emphasis on Balance of power
over pure Separation of Powers.
Today, Ind. and Exec. agencies function under APA. Staff positions all protected by “good cause” requirement.
We do want to maintain political accountability of administrators – a tie which can be sustained by retaining elected
Pres/Gov. ability to hire/fire without shared control/authority of any other branch.
Executive PRIMARY TOOL is Executive Orders. but, too much oversight inhibits Agency to freely apply their expertise.
Oversight Formal executive oversight has become increasingly common and controversial.
Office of Information and Regulatory Affairs (OIRA) w/in the Office of Management and Budget for “Significant”
Executive Oversight rules and yearly plans for Rulemaking to ensure regulations: Are consistent with the law; Do not conflict with other
(contd) agency regulations; and Are consistent with the President’s priorities.
EO 12866
Bush EO 13422 on Regulatory Planning and Review : Requires each agency to create a “Regulatory Policy Office” run
by a political appointee to supervise agency rules and guidance documents; Requires agencies to identify the specific
“market failure” or problem that requires government intervention in each case; Requires a yearly tally of the costs and
benefits (+nontangibles) of each agency’s regulations; Expands executive branch review beyond regulations to
guidance documents
Cost Benefit Questionable precision.
Analysis Where do you draw the line – how broad must analysis be – how do you properly analyze the cost of actions not taken.
How do you value non-economic benefits.
Huge discretion by creator to determine what is included and what the valuations are.

Due Process –Constitutional Right to a Hearing chp 2.

Limits on Agency Decision making

Administrative Admin law significantly affects lives: Benefits, services, licenses, jobs&contracts, taxes, institutional/prison
Agency Themes decisions. Individuals need protection from clumsy or insensitive bureaucracy.
Admin law procedures consume significant $$ resources.
Agencies operate with great discretion – rules and institutions operate to but bounds on that discretion.
Agencies regulate areas that involve fundamental value conflicts.
When is Due Guaranteed by Fed. gov in 5th Amend. and by States via the 14th Amend.
Process due 3 Step Process: – Whether due process applies – is there a Liberty/Property Right at issue.
- When due process applies (before or after action?).
There must be some process that supports checks and balances and keeps Agency in check.
- What kind of process is due – full blown trial type evidentiary or some part?
When gov. decision against individual Life, Liberty, and Property (including when individual has a statutory property
right).
Substantive due process infringements on fundamental interests require a compelling state interest. Economic interests
will rarely meet that test. Courts will accept rational justification for statutes which limit Economic Rights.
Procedural due process required is situational – and established by balancing test of cost to Agency v. damage to
individual.
In Goldberg v. Kelly p.26-7 (welfare entitlement = property right) J. Brennan makes a controversial (demanding)
Procedural list for AidFamDepChildren (AFDC) hearings required prior too benefit termination(despite 3 existing steps):
Proper notice of a hearing at proper time/manner allowing oral presentation and confrontation of witness with
attorney allowed (not required like a criminal case), and written statement of finding w/ reasons.
When is Due Process Black dissents entitlement not property, and process will only add delays to needy. Burger against Const./inflexible solutions.
due (contd) 3 modes of narrowing Goldberg: Exclude/limit what is defined as Liberty or Property;
Tailor the Process that is due based on context in which rights arise; or
distinguish general rulemaking from individual adjudication; no due process for
Rulemaking
Board of Regents v. Roth ’72 p33 (no Rights for fired teacher) Rejected evaluation based on “rights” v. “privileges” –
reconceptualized "liberty/property” to focus on entitlements. Entitlement may even be implied. Perry v. Syndermann
p41.
Look not to the weight, but the nature of the interest – is it a 14th Amend. protected liberty/property right.
Property = an interest defined by statute, more than unilateral expectation, must be legitimate claim of an entitlement..
t.
Liberty = more than freedom from restraint, orderly pursuit of happiness by free men. Meyer v. Neb. ’23 p35. Roth
establishes that Meyer substantive Liberty is same for procedural.
Economic rights far more protected under Procedural due process than substantive dp.
Required in: Terminating employment of federal civil servant (Arnett v. Kennedy); Terminating employment of state
school teacher with de facto tenure (Perry v. Sindermann); Automatically revoking a driver’s license if driver has no
insurance (Bell v. Burson); Making an individualized tax assessment (Londoner); Posting a list of public drunkards
(Constantineau)
NOT required in: Terminating federal employee’s security clearance (McElroy); Terminating employment of professor
on a one-year contract (Roth); Automatically revoking driver’s license after 3 suspensions in 10 years (Dixon v. Love);
Making an across-the-board tax increase (Bi-Metallic); Posting a list of shop-lifters (Paul v. Davis)
Defining Property Cleveland BoE v. Loudermill ‘85 p42 Post termination hearing not iaw procedural due process – State can define what
the property right is, but narrowing Roth, still must follow Const. procedural due process required by Court. Rejects
“bitter w/ the sweet” view in Arnett ’75.
Courts will accept rational justification for statutes which limit Economic Rights.
Defining Liberty More than freedom from bodily restraint; the right to common occupations of life essential to the orderly pursuit of
happiness by free men. Roth/Meyer v. Nebraska 1923 p. 35/6– to include reputation/stigma. (Natural law)
But Sandin v. Connor ’95 p. 47 moved away from the Natural law type liberty also afforded prisoners in Wolff and
Hewitt for prisoners – holding 1st, 8th, and 14th EP still protect prisoners from arbitrary state actions.
Timing of trial-Type It is helpful to first review the actual process/steps in place.
Agency hearing Mathews v. Eldridge 1976 p. 52. (multi-step process, but SSA disability benefit terminated before Judicial Hearing)
(what process is due) 3 Prong balancing Test:
Private interest – Identify the private interest being affected by the agency’s decision. Is this a “liberty” or a

“property” interest protected by due process? How important is the interest? Is it vital to someone’s well-
being
or survival? Identify degree of potential deprivation(alternative aide?), and possible length of a wrongful
deprivation. is there a “brutal need” a-la Goldberg v. Kelly? (there may be balancing of different Indv. Intrst)
Risk of Error – of procedures, and probable value of additional/alternative procedures; Erroneous Depravation?
Do the existing procedures assure to some reasonable degree that the government’s decision is correct?
Gov. Interest – cost/benefit analysis of Administrative and Financial burdens (which preclude service to others).
Mathews v. Eldridge applications: Government’s interest in destroying rotting food supplanted private interest in selling
food (North American Cold Storage v. Chicago); Government’s interest in closing a potentially unsafe mine supplanted
private financial interests in operating the mine (Hodel v. Virginia Surface Mining Ass’n); Government’s interest in
protecting horse racing from illegal drugs versus jockey’s career interests violated due process because it allowed his
license to be suspended without a prior hearing (Barry v. Barchi); Government’s interest in collecting parking fines
supplanted private interest in contesting inappropriate fines (Tyler v. County of Alameda); Government’s interest in
immediately removing employees supplanted employee interests in employment (Loudermill, McDaniels v. Flick)

Fair Agency Hearings

Other Protections Post-Mathews cases call for less process than dictated by Goldberg to as little as no process at all.
may suffice Tort rights, after the action, may be held to provide adequate due process. Ingraham v. Wright p64 ; Lujan v. C&G Sp.7
Court may limit When due process is provided by less, such as:
trial-type hearings Emergency of exigent circumstances [Link]. Cold Storage (unsafe food); Hodel (unsafe mine) ; Hamdi (military
detention)
Non-adversarial decisionmaking is more effective. Ingraham (school punishment); Walters (veterans’ benefits);
Horowitz (academics); Sandin, Hewitt, and Wilkinson (prison)
No issues of fact are being disputed. Altenheim German Home (hospital license); Connecticut Dep’t of Public Safety
(Megan’s Law)
Depravation of Liberty or Property is so minor. Goss (10-day school suspension); Van Harken and Alameda (parking
tickets)
Courts are better and more efficient at handling the disputes. Ingraham (tort remedies); Lujan v. G&G Fire Sprinklers
(breach of contract remedies)
Rulemaking/ Rulemaking affecting a class is generally NOT due individual due process, as is required for fact specific individual
Adjudication adjudications.
Distinction Protections for large groups are more efficiently provided through the democratic legislative Policy making process.
Londoner v. Denver (individual due process) p.73 Bi-Metallic …v. State… (rulemaking applied to whole city) p.75.
decides if Due Fed APA (1946) and 1961MSAPA do NOT require adjudicative hearings. APA §554(a) applies when a statute requires
Process is due. adjudication. Such requirement Formal Adjudicative hearings is triggered by the words “on the record.”
Informal/evidentiary hearings are those held by choice of agency and thus not all APA§554 requirements must be
applied.
Adjudication = affects identifiable persons based on facts peculiar to each of them, (E.g., EPA denying a builder’s
application for developing a wetland area) and Procedural due process generally applies.
Chevron 1984 Sp. 12 (reinforces support for deferral to Agency expertise) allowed agencies to avoid a formal hearing
(based on “reasonable” interpretation of law) unless specifically directed by Congress “on the record.” Agency prefers
streamlined action of not using ALJ’s in formal hearings. Applied in cases since like Dominion Energy … v. Johnson
Sp11.
Determining what Does law require Formal APA hearing “on the Record?”
procedure is If not - Apply Mathews test to procedures being used: Individual Cost (applicant due less than one who is “losing” a
adequate right), Risk of process injecting error, Cost to Gov.
Due Process must be allowed if due.
State Admin P Most States still follow the 1961 MSAPA which follow the Fed. APA (1946) – only provide for formal hearings
Acts when triggered by State Statute/Const. for “contested cases.” But statutes may specify for “public hearing” or “signfct
intrst.”
Sugarloaf v. NE MD… p. 94 sets how States determine when a hearing is required if law is ambiguous. Key elements
are whether the issue will affect an individual – or the public welfare at large.
1981 MSAPA provides tiered informal hearing formats/rights: p. 99.
§§4-401/3 Conference adjudicative hearing = NO disputed issue of material fact or low stakes.
§ 4-501 Emergency adj. hearing = immediate danger to public health, safety, or welfare reqng
immdt. action.
Summary adj. proceedings = extremely low stakes.
Due Process still must be fulfilled.

Fundamental Problems with Administrative Adjudications chp 3.

Statutory v. Constitutional Right to a Hearing.

Statutory Rights to Federal APA (and ’61 MSAPA) do NOT required adjudicative hearings. APA § 554(a) only applies to adjudication
a Hearing required by statute to be “on the record.” Formal hearing must be conducted by an ALJ.
Unless otherwise directed, Agency is free to choose its own dispute resolution procedures = “informal adjudication.”
Rebuttable Presumption has evolved to defer the words “hearing” and “public hearing” to the agency’s reasonable
interpretation of the statute Dominion Energy (1st Cir. 2006); Chemical Waste Management v. EPA (D.C. Cir. 1989)
p90. from originally requiring a formal hearing under the APA Seacoast Anti-Pollution League (1st Cir. 1978) (agency
adjudication) but see U.S. v. Florida East Coast Railway (U.S. 1973) (agency rulemaking); and then NOT requiring a
formal hearing under the APA City of West Chicago v. NRC (7th Cir. 1983) p. 85.
How Agencies Rules using Standard guides which determine outcome for given sets of facts. Heckler v. Campbell p. 100. (HHS
Limit Scope of matrix of 4 factors set by Congress) A Rule can actually displace an individual statutory right to an evidentiary hearing.
Hearings p103.
A valid Rule is conclusive, an administrative or official notice just streamlines its own burden of proof while still
allowing rebuttal. Heckler v. Campbell p. 104.
Presumption is that Rules can be applied to classes of issues unless Congress expressly w/holds that authority.
Nature and scope of rulemaking process allows for review/complaint/validation before Rule is implemented;
Sometimes Citizens Petitions to an Agency can get a Rule revised.
Agency can apply admin. summary judgment when no issues of material fact are disputed. Weinberger v. Hynson p106.
Responsibility of Institutional Model the decisionmaker may not hear the evidence/argument because emphasis is on
Decsionmaker policymaking by team to max efficiency and accuracy not on fairness and acceptability. (due process concerns)
Decisionmakers must remain accountable in some regard. If no basis for decision is given, then basis for a challenge is
denied – contrary to due process Morgan v. US p. 110.
Integrity of the administrative process must be respected Morgan IV; Presumption is that decisionmaker has reviewed
evidence – unless concrete evidence show otherwise. BUT, due process may require indv. be able to review/respond to
intermediate reports. Mazza v. Cavicchia NJ 1954 p. 114.
Due Process and APA (§ 556(e) Fundamental is that record of formal hearing is exclusive basis for decision.
Separating Agency Adversary (investigator, prosecutor, advocate) and Adjudicatory (admin judge, Agency head, or advsrs) role must
Functions NOT be filled by same person.
ALJ’s can not be under Supervision of those Agency Adversary functionarios.
APA, not MSAPA gives exception to Requirement for Separation of Functions for Agency Heads.
APA § 554(d)(C) v. 1981 MSAPA §4-214.
Congress also exempts initial licensing and ratemaking proceedings from Separation of Functions APA § 554(d)(A),
(B).
Principal of Necessity = “biased” judge allowed if no legally possible substitute decisionmaker.
Bias Unacceptable Bias is that against a party in a litigation, not to existing views on the subject matter. Can be hard to
prove.
You can NOT impute views of a client to a lawyer.
An adjudicator should be disqualified if – tainted by personal animus, prejudgment of issues, or personal $take in
decision.
1981 MSAPA §4-202(b) opts for a Judicial Approach, “bias, prejudice (i.e statements out of role), interest (i.e.
financial), or … for which a judge may be disqualified” NOT the Institutional Approach of Andrews v. ALRB p. 123
which ruled mere appearance of bias (w/out proof of actual bias) does not violate due process. Due Process Rights
stem from statute.
Bias ex.: Adjudicator’s financial interest in the outcome (Tumey v. OhioU, Ward v. Village of Monroeville p. 128);
Pecuniary interest against potential competitors (Gibson v. Berryhill) p. 128 ; Prior “unguarded” statements “out of
role” against one party (Cinderella Finishing Schools v. FTC) p. 129.
Ex. NOT Bias: Prosecutor’s financial interest in the outcome (Marshall v. Jerrico) p. 128; Representing one class of
clients in law practice (Andrews v. ALRB); Insignificant pecuniary interest against potential competitors (Friedman v.
Rogers) p. 129; Prior exposure to facts of case (NLRB v. Donnelly Garment) p. 129.
(Effectiveness of available cure in defect/bias may also play a role in ruling.)
Ex-Parte Contacts APA § 557(d) (1)(E) prohibits e-p contacts when designated by Agency, but no later than notice for hearing (or time of
any prior knowledge of coming notice).
Off the record (no prior notice to all parties) communication w/ decisionmaker (or advisors) is prohibited by an
interested party on the merits during an ongoing adjudication. Except – request for Status Reports OK per APA §
551(14).
Remedies for Ex-Parte Communications – 1) Disclosure. 2) Dismiss claim or interest of violating party if review
shows lack of evidence for what must be a biased/arbitrary decision. APA § 557(d)(C),(D).
PATCO v. FLRA ’82 p. 132 Standard = shun mechanical rules in favor of judicial equitable discretion; void decision
only when e-p contact has irrevocably tainted the ultimate decision. TX SC in Vandygriff held that to avoid Morgan
IV principal against probing the mind of the Commissioner, presumption should favor Commissioner.
1981 MSAPA prohibits ex-parte contact from the time an application is filed/pending adjudication.
Cngrsnl oversight/ Congress allowed to uphold Statutory scheme DCP Farms v. Yeutter p. 148, but NOT get involved in Adjudication of
interference in specific issues of any specific case. Pilsbury v. FTC p. 142. Congressmen should avoid mention of any pending
Adjudication adjudication when debating vital legal issues.
One correction to Legislature’s interference would be to file for (sanction in the legislature?)

Process of Agency Adjudication

Review evidence and make findings of fact in trial type hearing to apply law to facts w/ discretion in a contested proceeding.
Advantages over rulemaking on p. 220.

Pre-Hearing Notice APA § 554(b) requires agencies to give affected persons specific notice of the hearing, including the time, place, nature
of, and legal authority for the hearing. (see also MSAPA § 4-206(c)).
Must provide enough detail to allow a respondent to prepare for the hearing, and provide due process.
Licensing statutes often do not include Statutes of Limitations, but laches may block action if delay was unreasonable.
3rd parties generally can not initiate an Agency hearing unless statute allows or issue is agency authority
(Const./statutory).
Discovery 3-way between, Parties and Agency. Agency must allow parties access to agencie’s discovery, and FOIA is possible.
Does not follow normal Rules of Civil Procedure and Fed Rules of Evidence do not apply; hearsay allowed.
APA does not regulate (less rules, less obstacles) but does NOT prohibit, and it does recognize most forms of discovery.
Depositions and interrogatories rarely employed in admin proceedings.
Agency Subpoena Compelling information is not an inherent nor APA designated power. A statutory basis is required.
Agency may issue its own subpoena. Agency doesn’t have to notify investigated party when it subpoenas 3rd parties.
Subpoena must be related to matter Agency has jurisdiction over, must comply to statutory procedures and rules, must
be in good faith for proper purpose, and not vague, overly-broad or burdensome.
Subpoena duces tecum aka CID (civil investigative demand) used to request info. Physical Inspections also possible,
but usually must provide a search warrant. Marshall v. Barlow’s - except for liquor/gun/chop shop type dealers NY v.
Burger p. 177. 4 criteria for warrantless inspection= substantial gov. regulation, necessary part of regulatory scheme,
owner advised by statute, limited in time, place, and scope.
Standard for Agency to issue is only Reasonable and Relevant to existing Policy and statute;
Agency Subpoena Probable Cause due in Criminal cases is NOT required for Agencies.
(contd.) No formal complaint or charge is required for Agency to be allowed to request records. OK Press Pub v. Walling p171.
No 4th Amend. “privacy” claim can be made when records are required for agency inspection by lawful statute or
regulation.
Agency can NOT enforce its own subpoena, it must be reviewed and enforced by court order. Craig v. Bulmash CA p.
171.
5th Amend. defense of self-incrimination is not applicable because records/standards are not enforced to punish a crime,
but as part of a lawful regulatory scheme protections. Craig v. Bulmash CA following Shapiro v. US p. 173. But,
authority limited when inquiry is criminally based as in Marchetti v. US p. 173.
Defense attorney should negotiate to narrow scope of request, and may request judicial review before being penalized
for non-compliance w/ agency subpoena – but remember relationship is ongoing.
ADR APA §556 Negotiation=parties, Mediation=non-binding facilitator, Arbitration=possibly binding.
(Agencies used to be Administrative Dispute Resolution Act of 1990 = Nothing is compulsory; Parties must agree to use ADR; Agencies
ADR for courts) have to explore using ADR in all rulemaking and adjudicatory proceedings; Agencies have discretion; The decision to
use ADR is exempt from judicial review - But arbitrator awards are reviewable by courts.
Hearing Evidence Formal Agency adjudication resembles a judicial trial – but has significant differences: Each Agency may have diff.
rules.
§ 556(d) APA and 1981 MSAPA § 4-211(2) Don’t require full Rules of CP and Evidence, hearsay allowed. Intent is to
allow a more efficient system and make system more usable for lower income people it must serve, and take advantage
of Agency experts who are unlikely to be deceived by unreliable evidence.
ALJs are expected to take an active role in developing the record. Failure to help unrepresented party may support
reversal.
Burden of Proof in a Formal Hearing § 556(d) APA is Preponderance of the Evidence Steadman v. US ’81 p. 187.
Def. must take stand in Agency hearing, but can claim 5th on individual questions regarding required records, but
Agency can draw adverse inference. If statute authorized, Agency can offer an individual immunity and compel
testimony. 18 USC; Bellis v. US p. 176.
Evidence seized violating 4th Amend is likely admissible in an Admin proceeding. INS v. Lopez-Mendoza p. 178.
Residuum Rule (most States apply it) requires that Agency findings be supported by some evidence that would be
admissible in a civil or criminal trial. Used by many States, but not by OR statute in Reguero v. TSAP p. 182,
But Std of Substantial Evidence is used by Fed. Agencies = when record viewed as a whole, permit a reasonable
person to make such finding; a jury std. Richardson v. Perales ’71 p.186.
“Official Notice” Agency can go further in Official Notice than judge may with Judicial Notice. APA § 556(e). When a decision rests on
Official Notice of evidence not in record, the party may provide contrary evidence in a timely manner.
Merely applying expertise to evaluate evidence presented is NOT Notice. Notice is injection of expertise when the
record contains no opinion evidence. Franz v. Board of Medical Quality Assurance CA p192.
Scope = Agency taking Official Notice must (due process) be communicated to parties (when such notice would be
beyond expected lay comprehension) to provide them the opportunity to respond.
Agency Experts balance efficiency and fairness in determining when to allow rebuttal to Official Notice by parties.
Party making the claim, has burden of proof – rebuttal should be allowed when Official Notice has shifted burden away
from Agency.
Remedy on Appeal can include opening up Official Notice decision for rebuttal if not previously allowed.
Fact Finding ALJ must rely on the record, all State APAs and Fed. APA [§ 557(c)(3)(A)] require findings and reasons be
published. Ciba-Geigy p 200. Requirement for findings and reasons is common law technique to promote rational
Admin decisionmaking and facilitating judicial review. Record facilitates Judicial Review and ensures action is w/in
allowed Scope.
Fact Finding is a basic requirement when agency acts in quasi-judicial capacity to the extent required by Statute.
Failure to make findings and state reasons can NOT be overcome by post-hoc rationalization. Overton Park p. 200. But
remedy of remand may be merely a formality.
But – Federal Courts are precluded from imposing Fed Procedural Rules on Agency as a matter of Admin Common
Law.
Effect of Decision Agencies adjudicate more cases than courts, so efficiency is very important. Relitigation should be minimized.
Res Judicata = CLAIM preclusion; Bars parties to a valid, final judgment from relitigating an identical cause of action.
[Works for court-court, agency-agency, but some courts won’t apply a court ruling on to agency since
claim can not be “same” due to diff. rules of evidence/proc. and burden of proof.] Criminal convictions are
conclusive, acquittals are not.
Collateral Estoppel = ISSUE preclusion after an Agency ruling on a fully litigated issue US v. Utah Const. & Mining
p204. Non-mutual CE does not lie against the Fed. Gov. (to allow percolation to SC and eliminate need for US to appeal
all cases due to Circuit independ. to prevent future preclusion), but agency rulings can be used in non-mutual offensive
collateral estoppel against a party. US v. Mendoza p. 205. Statutory preclusion of appeal will make an agency ruling
ineligible for collateral estopple on any issue “settled” in ruling due to lack of full and fair opportunity to litigate the
issue. p 207.
Application of these rules to Agency adjudications is governed by words of statute. Unv. of TN v. Elliott p. 204; when
they are applied it raises stakes of even informal Agency hearings.
Equitable Estoppel applied when agency statement or conduct reasonably induces detrimental reliance by party. Basic
fairness requires it be applied against Gov. actions when: cited by Foote’s Dixie Dandy, Inc. v. McHenry Ark. ’80 p.
211.
- Gov. (party to be estopped) knew facts
Gov. agent must intend action would be relied on by other party
Party must be ignorant of true facts
Party must actually rely upon agents action.
BUT –Federal Courts have NOT favored Equitable estopple (basis =Appropriations Clause, Const. Art. I §9, cl.
7)
unless in a narrow case involving Agency affirmative misconduct. OPM v. Richmond p. 213.
Because application of CE can also squelch Agency advice-giving or published “guidance.”
Stare decisis – Means “stand by the decision;” it is a common law principle intended to provide consistency and
predictability in the law. Agencies are NOT bound by stare decisis, because they must have more flexibility due to the
political/admin roles they fulfill which courts do not, but all agencies must explain departure from prior holdings. UAW
v. NLRB p. 209.
Declaratory Order – is more than an Agency Advice Letter, it is an administrative adjudication binding to all parties.

Agency Rulemaking Procedures

Policy based “legislation” w/ widespread application. (currently predominates Adjudication.)

Why Important Decisionmaking of Agencies is more streamlined and effective than spending time adjudications.
Advantages p. 218: involvement of large numbers in creation, more collaborative than confrontational, broad
application, public and transparent, published and easy to find/follow, provide formal oversight mechanisms for
Executive and Legislative branch (structural inherent checks and balances). Ideal for consumer protection.
[Link] v. FTC p222.
Disadvantages: becoming less efficient as it is bogged down by increasing Exec. and Legis. Oversight, overly
bureaucratic due to layers of required procedures, limited to prospective applications, implementation can be costly and
expensive, possible lack of history/experience to base the rule on. = attorney job security.
Formal Process Agency issues notice of proposed Rule, OMB review under 12866, Proposed Rule published in Fed. Register, Public
Comment period (30+ days), OMB re-review, Final Regulation (responding to every public comments) published in
Fed. Reg. w/ effective date(30 days/60 days for “Major” rules), submit Reg. to Congress and GAO under CRA
(Congressional Review Act), Reg is place into updated Code Fed. R.
Fed. Register: Created to avoid “secret” rulemaking; Published every weekday; 60,000 pages yearly; Proposed
regulations include key agency statements in preamble; Final regulations respond to public comments in preamble.
Code of Federal Regulations (C.F.R.): Codifies regulations first published in Federal Register; Divided into 50 titles,
just like U.S. Code; Printed yearly, in different colors.
What is a Rule Prospective and Broad application § APA 551(4) = whole or a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the
organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future
of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or
allowances therefore or of valuations, costs, or accounting, or practices bearing on any of the foregoing;…
1981 MSAPA § 1-102(10) Rule = whole or a part of an agency statement of general applicability that implements,
interprets, or prescribes (i) law or policy, or (ii) the organization, procedure, or practice requirements of an agency.
The term includes the amendment, repeal, or suspension of an existing rule.
1981 MSAPA § 1-102(5) Order = agency action of particular applicability that determines the legal rights, duties,
privileges, immunities, or other legal interests of one or more specific persons. [The term does not include an "executive
order" issued by the governor pursuant to Section 1-104 or 3-202.]
1981 MSAPA does not use the “or particular” and “future effect” wording of APA §551(4) to emphasize general and
forward looking nature of a Rule v. Adjudication. A Rule is not subject to APA requirements and due process
separation of function needs applied to adjudications. Thus rate making with a particular applicability is an order,
while that directed to a class of people is a rule.
Retroactive application of a rule must be specifically authorized in the empowering statute. J. Kennedy Bowen v.
Georgtown Unv. Hosp. ’88 p 230. (retroactive retraction of HHS Medicare payments) J. Scalia concurrence adds that
“secondary retroactivity” of a rule (practical affect on investments) can render rule arbitrary and capricious. p. 231.
Adequate Notice Is required of any proposed rule per APA § 553(b)(3) “either terms or substance of the proposed rule or a
description of the subjects and issues involved.”
Logical Outgrowth Test applied to determine adequate notice – such that any Final Rule must be in character with the
scheme from original posted Notice for Rule. Case fact-specific determination of whether there is a substantial
departure “from the terms or substance of the proposed rule.” Choc. Manf. Ass’n v. Block ’85 p 237. (WIC choc milk)
Changes w/ effect possibly > $100 mil must be published semiannually in Unified Regulatory Agenda.
Adequate Notice
Public comments submitted are only posted after Public Comment Period ends, and thus are NOT considered as a
(contd)
Public Notice by Agency.
1981 MSAPA § 3-107 uses “Substantial Difference” Test to determine if Final Rule is based on adequate notice in the
Notice; based on:
(1) the extent to which all persons affected by the adopted rule should have understood that the published proposed
rule would affect their interests;
(2) the extent to which the subject matter of the adopted rule or the issues determined by that rule are different from
the subject matter or issues involved in the published proposed rule; and
(3) the extent to which the effects of the adopted rule differ from the effects of the published proposed rule had it been
adopted instead.

Disclosure § APA 557(d) requires Agency disclose to public all data it uses relevant to the merits of the proceeding.
All federal and state APAs require agencies to state the facts supporting and reasons for their conclusions.
Informal Aka. “Notice & Public Comment.” Most common. Only type recognized in State APAs. usually “Paper based”
process.
Agency must accept/”consider” all Public comments – oral or written/email form up to Agency APA § 553(c). But in
some States, significant public demand may require oral hearings.
Fed. Presumption is general rulemaking only requires informal procedures of APA § 554 US v. FL E. Cst Railway p.
249.
Congress now encourages agency to facilitate E-rulemaking ability to submit public comment by E-mail.
Presumption for Rulemaking is for an Informal hearing – but Statute can require more.
Formal Only required when statute or regulations require “on the record” APA § 553(c) specifies when §§556/7 how. The
Record is exclusive basis for Agency actions.
Rarely used because it is burdensome and not necessarily more effective, may obstruct agency action and frustrate reg.
goals, and unsuitable for most rulemaking issues p. 251; and formal rulemaking must be explicitly authorized by statute.
Follows adjudication provisions of APA §556/7 =Trial type hearing including right to present evidence, X-exam,
rebuttal.
Oral presentation, witnesses and X-examination allowed.
Presumption for an adjudication is more likely to be a Formal hearing.
Hybrid Congressional modification by statutes of specific additions on to present APA sections.
Congress (or Agency) can add procedural requirements, but judges normally can NOT (to sustain the Policy that
Rulemaking is intended to be efficient). Vermont Yankee Nuclear Pwr v. NRDC ’78 p. 255. (unanimous ruling)
PBGC v. LTV ’90 p. 260 resolves Vermont with Overton by stating Overton merely says that APA § 706(2)(A)
prohibition of arbitrary and capricious action requires agencies take procedural steps which will provide explanation of
decision in enough detail to enable a court’s review of the agency rationale.
Procedural Head needn’t actually be at hearings. APA § 553(c) & ’81 MSAPA § 3-106(c) require the “Agency” (decisionmaker -
Fairness - represented by Comm.) to actually consider submissions to rulemaking. Morgan I p112 – but Agency Head’s review of
Role of Agency Head submissions may not normally be examined in court. Morgan IV ’36 p. 111. (stockyard rates)
[APA §555 may set min requirements for informal rulemaking. PBGC v. LTV ’90 p. 261]
Must be a strong showing of bad faith or improper behavior before testimony with regard to reasons can be
taken by the appellate court. Natnl Nutritnl Foods Asso. v. FDA, 491 F.2d 1141 (2d Cir. 1974)
Ex-Parte “Informal contacts … are the ‘bread and butter’ of the process of admin. and are completely appropriate so long as they
Communications do not frustrate judicial review or raise serious questions of fairness.” HBO v. FCC ’77 p 267.
Fed. APA is silent regarding any required records in Rulemaking, but ’81 MSAPA § 3-112(b) specifies record
requirmnts.
Ex-Parte Due process concerns of fundamental fairness may present limits on ex-parte off the record contacts in even Informal
Communications Rulemaking once formal notice of rulemaking is issued. HBO v. FCC ’77 p 265. - elswise it is arbitrary. Overton p.
(contd) 266.
3 considerations in excluding ex parte off record contract =
1) record for Judicial review 2) facilitate adversarial comment 3) secrecy counters fundamental notions of fairness
But the cases after HBO, including Vermont Yankee / Sierra Club, are much more lenient, particularly during true
rulemaking proceedings, thus proving agency bias during rulemaking is all but impossible. See J. Scalia et al p. 274-77.
Statutes may dictate restrictions on ex-parte contacts or recording requirements during rulemaking, but Congress
specifically did NOT limit ex parte contacts in informal rulemaking. Statute may allow Agency to determine when oral
ex parte communications are significant enough to be posted on the record. Presdntl and intra-Executive branch
meetings are a part of informal rulemaking, even undocumented and post-comment prd. Sierra Club v. Costel ’81 p.
271.
Check on allowance of off-record ex parte contacts is that - decision still must be supported by what is in the record.
Argument against such contacts weaker in Legislative role of Agency than in their Adjudicative role. When only two
parties are principals in outcome, agency ruling tends toward a quasi-judicial ruling. Sangamon v. US p. 275.
Remedies can be: remand to re-opening the rulemaking, that facts be added to docket, or find rule arbitrary based on
record.
Extremely difficult (moreso than for adjudication) to prove bias in rulemaking.
Findings & § APA 553(c) requires a concise general statement of their basis and purpose. Serves function of:
Reasons facilitates judicial review,
allows more informed scrutiny by Leg. and public
articulation of reasons induces reasonable actions by agency.
publication of policy and facts enables public to predict future agency action.
Justification enhances public confidence in rationality of decisionmaking.
Court looks for quality over quantity in statements of basis and purpose.
Such as: - Is action w/in Scope of authority?
Were review procedures fair?
Was final action reasonable? CA Hotel & Motel Ass’n CA ’79 p. 286. (sim to Fed rulings)
Agency need only respond to comments, that if true, would require a change in the rule. Am. Mining v. USEPA ’90
p292.
Court remedies may be a remand for further review, ask for additional statement, or simply note omissions and allow
decision to stand as is for substantial compliance or failure to harm. But just as the Chenery Doctrine for adjudications,
‘post-hoc” rationalizations are NOT favored. Codified in part in ’81 MSAPA § 3-110(b).
Cost-Benefit Regulatory cost-benefit analyses have become entrenched in agency rulemaking, for better or for worse = 3
Analysis types:
No risk (benefit only) Analysis. Eliminate “all” risk in key safety areas – Nuke power/air safety
(not really a cost – benefit analysis). But, clear statutes are important to avoid a Delaney (p. 309)
Clause excessive implementation; however, Congress should draft w/ allowance for Agency to
apply their expertise.
Budget (cost only) Analysis.
Cost-Benefit Analysis: required by EO 12866 p. 305, includes evaluation of qualitative benefits to
achieve min. regulation yet max net benefit. But formal CBA only required for ‘Significant”
(100mil+) actions. ’81 MSAPA §3-105(a) only requires it “when requested.”
CBA methods/assumptions/data themselves may be imprecise despite best efforts; reason for 2000 IQA /DataQltyAct
sp29.
States challenged by CBA requirements due to: lack of resources, limited staff expertise, minimal judicial expertise.
’81 MSAPA §3-105(f) instructs courts to uphold rule if State made “good faith effort to comply” w/ CBA.
Claims against CBA process might be used just to delay conclusion of rulemaking. To counter this, laws might allow
such claims only after final rule implemented.
Procedural bias is against the general public, because a significant party that stands to loose may put great effort into
providing persuasive data.
Negotiated ADR for rulemaking following Negotiated Rulemaking Act of 1990 to assimilate regulated industries and prevent
Rulemaking litigation.
Run not by Agency rep., but by mediator. Best applied w/ a limited # (<26) of identifiable parties.
Announced in Fed. Register, Committee formed from respondents, non-biding proposal to Agency, Agency then
modifies as needed and submits to traditional Notice and Comment.

Rules as Part of Agency Policymaking Process

Exemption from Serves expeditious, effective, and economical function of agency. Exemptions are nearly always narrowly
Notice&Comment construed. Must publish reasons supporting exemption. Exempt by explicit finding for “good cause” because
unnecessary (technical adjustment/no discretion), impracticable ( § APA 553(b)(B) & ’81 MSAPA § 3-108), or contrary
to public interest (i.e. price controls).
APA § 553(d)(3) allows exemption from 30-day delay placing Rule in effect of rule for good case.
Allows for Direct Final Rulemaking to streamline normal APA §553 procedure for non-controversial rules = publish a
rule with a period for comment; if no adverse comments, rule is final, if adverse comments, rule is pulled and given
normal notice and comment procedure.
Urgent Rules allowed for serious health or safety problems (thus delay is impracticable/contrary to public interest).
Interim-final rules based on impracticable or public interest usually request comments after publishing rule per ACUS
recommendation 95-4.
Certain gov. functions are categorically broadly exempted such as public property, loans, grants, benefits, or contracts as
in APA § 553(a)(2) or regarding the military or foreign affairs per APA § 553(a)(1). ACUS recmmds abandoning this
exemp.
Procedural Rules All rules relating to Agency management or personnel issues are exempt from rulemaking per APA §553(a)(2).
Based on congressional judgment that such rules do not directly guide public conduct.
Test (Sub/Pro) But a rule that has “substantial impact” and modifies substantive rights and interests and “departs from existing
practice” is only nominally procedural and non-exempt from public rulemaking procedure. USDept. Labor v. Kast
Metals p. 334/5.
Non-legislative Nonlegislative rules are guidance documents and do not have the force of law.
Rules Not based on delegated statutory authority to issue such rules, not legally binding.
Increases public understanding of the law and reduces the number of unintentional law violations. Also reduces transaction costs in planning private
transactions
Agency reliance on non-legislative rules is increasing because of all of the hoops required for issuing a rule.
Differences:
Legislative rules are binding on private citizens and on the agency. Nonlegislative rules are not automatically binding.
Legislative rules are based on delegated statutory authority. Non-legislative rules are not based on delegated statutory