Quiz 3 DO ONE OF THE FOLLOWING ITEMS, BUT NOT BOTH : 1. Under ordinary circumstances administrative agency personnel are required to obtain a search warrant before conducting inspections of homes and businesses. But in some instances inspections may be conducted without a search warrant; describe those circumstances or conditions. 2. When administrative personnel are required to obtain a search warrant to conduct routine inspections of businesses, they are not obligated to conform to the same requirements that a police officer does to obtain a warrant in the process of a criminal investigation. What’s the difference?

Quiz 3 DO ONE OF THE FOLLOWING ITEMS, BUT NOT BOTH : 1. Under ordinary circumstances administrative agency personnel are required to obtain a search warrant before conducting inspections of homes and businesses. But in some instances inspections may be conducted without a search warrant; describe those circumstances or conditions. Social services caseworkers’ home visits (if prior notification given) “Closely regulated” and “pervasively regulated” businesses Public areas of any business, including things in “plain sight” from ground adjacent to or airspace above the business

Quiz 3 DO ONE OF THE FOLLOWING ITEMS, BUT NOT BOTH : 2. When administrative personnel are required to obtain a search warrant to conduct routine inspections of businesses, they are not obligated to conform to the same requirements that a police officer does to obtain a warrant in the process of a criminal investigation. What’s the difference? No showing of probable cause required; no “particularity” requirement re: things to be seized Only have to show that the inspection (“search”) is part of a comprehensive plan for enforcing agency’s statutory mandate Purpose for this modest warrant requirement is to prevent repeated searches which could amount to harassment.

Agency Policymaking Actions Informal Rulemaking RulemakingFormal Informal Informal Adjudication AdjudicationFormal See p. 547

Rulemaking v Adjudication: Bi-Metallic Case Does the agency action affect a small number of specifically- identified people so that the agency can reasonably hear those affected? Does the agency action depend at least in part on facts about specific-named people or organizations, so that a hearing where they may present additional facts can influence the action one way or another? Is agency decision-making resting primarily upon past events and looking to “punish” someone for prior actions or alleviate the suffering someone has experienced because of another’s actions? Is the agency action primarily concerned with setting the boundaries for the control of future actions rather than being focused on remediation for past actions? Is the agency action “retroactive” or “proactive”

Degrees of Formality in Rulemaking Classical rulemaking – highest degree of informality; only such procedures as decision makers choose to impose on themselves - “feet on the desk” or “man law” style of rulemaking Classical rulemaking – highest degree of informality; only such procedures as decision makers choose to impose on themselves - “feet on the desk” or “man law” style of rulemaking

Notice and Comment Rulemaking: APA, §553 Agency must publish general notice of proposed rule in the Federal Register Agency must publish general notice of proposed rule in the Federal Register Giving time, place, and nature of proceedings Giving time, place, and nature of proceedings Reference to the legal authority under which the rule is proposed Reference to the legal authority under which the rule is proposed Description of subjects or issues involved (or text of proposed rule) Description of subjects or issues involved (or text of proposed rule) Agency must give interested persons/organizations a reasonable chance and time to comment on the proposal Agency must give interested persons/organizations a reasonable chance and time to comment on the proposal Agency has discretion about allowing oral comments or not Agency has discretion about allowing oral comments or not Then agency must incorporate in the final rule a concise statement of the basis and purpose of the rule Then agency must incorporate in the final rule a concise statement of the basis and purpose of the rule

Then agency must publish the final rule at least 30 days before it goes into effect Then agency must publish the final rule at least 30 days before it goes into effect Not for purpose of allowing additional comment but to give adequate time for complying with the requirements of the rule Not for purpose of allowing additional comment but to give adequate time for complying with the requirements of the rule Unless new rule is less stringent than an old one it replaces Unless new rule is less stringent than an old one it replaces Unless rule merely interprets/clarifies an existing rule Unless rule merely interprets/clarifies an existing rule Unless it merely governs internal agency policy Unless it merely governs internal agency policy Finally, agency must give interested persons & organizations the right to petition for further changes in existing rules Finally, agency must give interested persons & organizations the right to petition for further changes in existing rules

Degrees of Formality in Rulemaking Reg-neg (regulation-negotiations); Congress amended the APA to permit a more informal form of rulemaking from that initially provided for in §553; it is embodied in § Ironically, it the very nearly the procedure the S.Ct. declared unconstitutional in Schechter Poultry and Panama Oil cases of Private interests who want a rule adopted propose a rule and negotiate with those to be impacted by it with the agency serving as referee. Reg-negs must still go through §553 procedures before final adoption of rule, so it is hardly a more informal procedure on the front end; it merely hoped to avoid rule resistance and litigation after the rule was adopted. Reg-neg (regulation-negotiations); Congress amended the APA to permit a more informal form of rulemaking from that initially provided for in §553; it is embodied in § Ironically, it the very nearly the procedure the S.Ct. declared unconstitutional in Schechter Poultry and Panama Oil cases of Private interests who want a rule adopted propose a rule and negotiate with those to be impacted by it with the agency serving as referee. Reg-negs must still go through §553 procedures before final adoption of rule, so it is hardly a more informal procedure on the front end; it merely hoped to avoid rule resistance and litigation after the rule was adopted.

§554 rulemaking “on the record after the opportunity for an agency hearing” §554 rulemaking “on the record after the opportunity for an agency hearing” A section of the APA which was originally designed to cover adjudications has been appropriated by Congress to cover some agency rulemaking A section of the APA which was originally designed to cover adjudications has been appropriated by Congress to cover some agency rulemaking This form of rulemaking occurs only when the agency’s authorizing statute requires it This form of rulemaking occurs only when the agency’s authorizing statute requires it

Hybrid rulemaking – intermediate stage between §553 “notice and comment” and §554 “on the record” rulemaking Hybrid rulemaking – intermediate stage between §553 “notice and comment” and §554 “on the record” rulemaking §553 procedures are efficient but criticized for not allowing sufficient participation by public §553 procedures are efficient but criticized for not allowing sufficient participation by public §554 procedures maximize opportunities for public participation but criticized for being too expensive and time consuming §554 procedures maximize opportunities for public participation but criticized for being too expensive and time consuming Hybrid procedures add one or more steps beyond what §553 requires, but stops well short of those required in §554 procedures Hybrid procedures add one or more steps beyond what §553 requires, but stops well short of those required in §554 procedures Requirement for submission of oral testimony Requirement for submission of oral testimony Cross-examination of witnesses Cross-examination of witnesses Advanced notice Advanced notice Disclosure of methodology and/or “intent to rely” Disclosure of methodology and/or “intent to rely”

STANDARDS FOR ADMINISTRATIVE RULEMAKING Does agency's authorizing statute specify rulemaking procedure to be followed? Yes No § "on the record after opportunity for an agency hearing"? § 553 of APA applies § Yes No Does rulemaking qualify for an exception to § 553? full trial-like proceeding Yes No § under § of APA proceed to next level Classical Notice-Comment rulemaking "after a hearing" :agency develops its own procedures to guarantee at least minimum due process protection adequate in the context of the substantive matter and potential sanctions

Levels of Informality in Adjudication Informal determination of facts constituting an infraction, informing violator, application of penalty Informal determination of facts constituting an infraction, informing violator, application of penalty Academic evaluations resulting in removal – Horowitz: “far less stringent procedural requirements” standard than for disciplinary dismissal Academic evaluations resulting in removal – Horowitz: “far less stringent procedural requirements” standard than for disciplinary dismissal Academic suspension/dismissal – Goss: notice, explanation of evidence, chance to tell side of story in an “informal give and take” context Academic suspension/dismissal – Goss: notice, explanation of evidence, chance to tell side of story in an “informal give and take” context

Increasing number of Goldberg ingredients Increasing number of Goldberg ingredients All 10 Goldberg ingredients All 10 Goldberg ingredients Full adjudicatory hearing Full adjudicatory hearing

Adjudications Does authorizing statute require adjudication to be "on the record after opportunity for agency hearing?" Yes No § § of APA agency develops its own procedures to guarantee at least minimum due process protection adequate in context of the substantive matter and potential sanctions