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The
APAs usually set forth the requirements for informal or notice and comment rulemaking
and formal adjudication hearings. Some, like the Model State APA may describe several types
of adjudication. Other types of agency action may be included in the judicial review provisions,
but not described in the procedural sections.
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The
federal case of Matthews v Eldridge is the seminal minimal due process case that identifies
a balance of several factors as an aid of determining the specific procedures to be used under
due process. Critical concerns include whether cross examination is required and whether oral
presentations are required. There is no single type of procedure that covers all due process
situations.
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Informal
adjudication and other hearing decisionmaking processes may be found in the agency's
organic statute, either directly or by implication. These procedures may involve some form of
oral presentation, but they may also be limited to the exchanges on paper. Due process
requirements do not necessarily demand an oral hearing. The APAs often give the agency
discretion in rulemaking on whether oral or paper hearings can be used. Formal adjudication
usually provides for some oral presentations, but much of the evidence can be required to be
submitted in a nonmoral manner.
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Site
visits may be used in agency decisionmaking. They substitute for a portion of a formal or
informal hearing process. Where a full record is required, the results of the site visit must
be
preserved in the record in some form for possible agency and judicial review.
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Telephone
hearings may be used in a variety of situations where they are authorized. The
telephone hearing will remove the element of visual demeanor credibility, but voice tones and
changes can be monitored. The fact that a telephone hearing prevents personal confrontation
does not necessarily offend due process. Paper documents can be distributed in advance by
mail or fax.
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Testing
may substitute for a hearing in a variety of circumstances. For example, steam boiler
testing is often mandated by statutes as being superior to oral hearings on the issue of safety.
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