Nondelegation doctrine: State formal rulemaking requirements (2020)

This survey is part of a series of 50-state surveys examining the five pillars key to understanding the administrative state

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This page contains information about states with provisions in their constitutions or administrative procedure acts requiring agencies to follow formal rulemaking procedures.

Formal rulemaking, in this context, means that the state agency must hold a public hearing to accept oral comments on a proposed rule before adopting a final rule. At the federal level, formal rulemaking requires agencies to consider proposed rules in a trial-like hearing process.

State administrative procedure acts (APAs) govern procedures for state administrative agencies to propose and issue regulations, adjudicate disputes, and provide for judicial review of agency decisions. Many state APAs are modeled on the federal APA, which governs the administrative processes of federal executive branch agencies. Text of all 50 state APAs is available here.

This page features the following sections:

Summary of key findings
Table showing states with APA provisions governing the use of formal rulemaking procedures
Text of state APAs with provisions requiring agencies to use formal rulemaking procedures
Text of state APA provisions requiring agencies to use formal rulemaking procedures when requested
Text of state APA provisions allowing agencies the option to use formal rulemaking procedures
Text of state APA provisions requiring agencies to use formal rulemaking procedures for certain rules

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Summary of findings

Ballotpedia's survey of state constitutions and APAs produced the following key takeaways (as of February 2020):

17 states, 34%, had APA provisions expressly requiring agencies to follow formal rulemaking procedures

Six states, 12%, had no relevant constitutional or APA provisions

23 states, 46%, had APA provisions requiring agencies to follow formal rulemaking procedures when requested

Two states, 4%, had APA provisions that gave agencies the option to follow formal rulemaking procedures

Two states, 4%, had APA provisions requiring agencies to use formal rulemaking when issuing certain rules

No states had constitutional provisions requiring agencies to follow formal rulemaking procedures

States with APA or constitutional provisions requiring agencies to use formal rulemaking procedures

The table below includes each state in alphabetical order and indicates those with specific provisions in their constitutions or APAs requiring agencies to use formal rulemaking procedures.

means that the state constitution or APA contained a formal rulemaking requirement
d means that the state constitution or APA did not require formal rulemaking
means that the state constitution or APA required formal rulemaking when requested
means that the state constitution or APA gave agencies the option to use formal rulemaking
*** means that the state constitution or APA required formal rulemaking for certain rules

State	Constitutional provision requiring formal rulemaking	State APA provision requiring formal rulemaking
Alabama	A
Alaska	A
Arizona	A
Arkansas	A
California	A
Colorado	A
Connecticut	A
Delaware	A	A
Florida	A
Georgia	A
Hawaii	A
Idaho	A
Illinois	A
Indiana	A
Iowa	A
Kansas	A	A
Kentucky	A
Louisiana	A
Maine	A
Maryland	A	A
Massachusetts	A	*******
Michigan	A
Minnesota	A
Mississippi	A
Missouri	A	A
Montana	A
Nebraska	A
Nevada	A
New Hampshire	A
New Jersey	A
New Mexico	A
New York	A	A
North Carolina	A
North Dakota	A
Ohio	A
Oklahoma	A
Oregon	A
Pennsylvania	A	A
Rhode Island	A
South Carolina	A
South Dakota	A
Tennessee	A
Texas	A
Utah	A
Vermont	A
Virginia	A
Washington	A
West Virginia	A
Wisconsin	A
Wyoming	A

Text of state APA provisions requiring agencies to use formal rulemaking procedures

This section contains text from state APAs that required agencies to hold a public hearing before issuing a new rule.

Some sections display whole articles from a state APA while others only show relevant segments.

Alabama

See also: Alabama Constitution and Alabama Administrative Procedure Act

Section 5 of the Alabama APA:

(a) Prior to the adoption, amendment, or repeal of any rule, the agency shall:

(1) Give at least 35 days' notice of its intended action. Date of publication in the Alabama Administrative Monthly shall constitute the date of notice. The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, shall specify a notice period ending not less than 35 days or more than 90 days from the date of the notice, during which period interested persons may present their views thereon, and shall specify the place where, and the manner in which interested persons may present their views thereon.^[1]

Arizona

See also: Arizona Constitution and Arizona Administrative Procedure Act

Section 41-1021 of the Arizona APA:

B. For each rule making proceeding, the docket shall indicate all of the following:

1. The subject matter of the proposed rule.

2. A citation to all published notices relating to the proceeding.

3. The name and address of agency personnel with whom persons may communicate regarding the rule.

4. Where written submissions on the proposed rule may be inspected.

5. The time during which written submissions may be made and the time and place where oral comments may be made.

6. Where a copy of the economic, small business and consumer impact statement and the minutes of the pertinent council meeting may be inspected.

7. The current status of the proposed rule.

8. Any known timetable for agency decisions or other action in the proceeding.

9. The date the rule was sent to the council.

10. The date of the rule's filing and publication.

11. The date the rule was approved by the council.

12. When the rule will become effective.^[2]

Colorado

See also: Colorado Constitution and Colorado Administrative Procedure Act

Section 24-4-103 (4)(a) of the Colorado APA:

At the place and time stated in the notice, the agency shall hold a public hearing at which it shall afford interested persons an opportunity to submit written data, views, or arguments and to present the same orally unless the agency deems it unnecessary. The agency shall consider all such submissions. Any proposed rule or revised proposed rule by an agency which is to be considered at the public hearing, together with a proposed statement of basis, specific statutory authority, purpose, and the regulatory analysis required in subsection (4.5) of this section, shall be made available to any person at least five days prior to said hearing. The rules promulgated by the agency shall be based on the record, which shall consist of proposed rules, evidence, exhibits, and other matters presented or considered, matters officially noticed, rulings on exceptions, any findings of fact and conclusions of law proposed by any party, and any written comments or briefs filed.^[3]

Hawaii

See also: Hawaii Constitution and Hawaii Administrative Procedure Act

Section 91-3 of the Hawaii APA:

(a) Except as provided in subsection (f), prior to the adoption of any rule authorized by law, or the amendment or repeal thereof, the adopting agency shall: ...

(2) Afford all interested persons opportunity to submit data, views, or arguments, orally or in writing. The agency shall fully consider all written and oral submissions respecting the proposed rule. The agency may make its decision at the public hearing or announce then the date when it intends to make its decision. Upon adoption, amendment, or repeal of a rule, the agency, if requested to do so by an interested person, shall issue a concise statement of the principal reasons for and against its determination.^[4]

Indiana

See also: Indiana Constitution and Indiana Administrative Procedure Act

Section 4-22-2-26 of the Indiana APA:


	(a) After the notices and the text of an agency's proposed rule are published under section 24 of this chapter, the agency shall conduct a public hearing on the proposed rule.^[5]

Kentucky

See also: Kentucky Constitution and Kentucky Administrative Procedure Act

Section 13A.270 of the Kentucky APA:


	(a) In addition to the public comment period required by paragraph (c) of this subsection, following publication in the Administrative Register of the text of an administrative regulation, the administrative body shall, unless authorized to cancel the hearing pursuant to subsection (7) of this section, hold a hearing, open to the public, on the administrative regulation.^[6]

Michigan

See also: Michigan Constitution and Michigan Administrative Procedure Act

Section 24.241 (1) of the Michigan APA:


	Except as provided in sections 44 and 66, before the adoption of a rule, an agency, or the office, shall give notice of a public hearing and offer a person an opportunity to present data, views, questions, and arguments.^[7]

Nebraska

See also: Nebraska Constitution and Nebraska Administrative Procedure Act

Section 84-907 (1) of the Nebraska APA:

Except as provided in section 84-901.04, no rule or regulation shall be adopted, amended, or repealed by any agency except after public hearing on the question of adopting, amending, or repealing such rule or regulation. Notice of such hearing shall be given at least thirty days prior thereto to the Secretary of State and by publication in a newspaper having general circulation in the state. All such hearings shall be open to the public.^[8]

Nevada

See also: Nevada Constitution and Nevada Administrative Procedure Act

Section 233B.061 of the Nevada APA:


	3. With respect to substantive regulations, the agency shall set a time and place for an oral public hearing, but if no one appears who will be directly affected by the proposed regulation and requests an oral hearing, the agency may proceed immediately to act upon any written submissions.^[9]

New Hampshire

See also: New Hampshire Constitution and New Hampshire Administrative Procedure Act

Section 541-A:3 of the New Hampshire APA:


	Except for interim or emergency rules, an agency shall adopt a rule by: ... IV. Holding a public hearing and receiving comments under RSA 541-A:11^[10]

Ohio

See also: Ohio Constitution and Ohio Administrative Procedure Act

Section 119.03 of the Ohio APA:

In the adoption, amendment, or rescission of any rule, an agency shall comply with the following procedure:

(A) Reasonable public notice shall be given in the register of Ohio at least thirty days prior to the date set for a hearing, in the form the agency determines. ...

(D) On the date and at the time and place designated in the notice, the agency shall conduct a public hearing at which any person affected by the proposed action of the agency may appear and be heard in person, by the person's attorney, or both, may present the person's position, arguments, or contentions, orally or in writing, offer and examine witnesses, and present evidence tending to show that the proposed rule, amendment, or rescission, if adopted or effectuated, will be unreasonable or unlawful. An agency may permit persons affected by the proposed rule, amendment, or rescission to present their positions, arguments, or contentions in writing, not only at the hearing, but also for a reasonable period before, after, or both before and after the hearing. A person who presents a position or arguments or contentions in writing before or after the hearing is not required to appear at the hearing.

At the hearing, the testimony shall be recorded. Such record shall be made at the expense of the agency. The agency is required to transcribe a record that is not sight readable only if a person requests transcription of all or part of the record and agrees to reimburse the agency for the costs of the transcription. An agency may require the person to pay in advance all or part of the cost of the transcription.^[11]

South Dakota

See also: South Dakota Constitution and South Dakota Administrative Procedure Act

Section 1-26-4 of the South Dakota APA:


	The following notice, service, and public hearing procedure shall be used to adopt, amend, or repeal a permanent rule: ... (5) The agency shall afford all interested persons reasonable opportunity to submit amendments, data, opinions, or arguments at a public hearing held to adopt the rule. The hearing may be continued from time to time. The agency shall keep minutes of the hearing.^[12]

Tennessee

See also: Tennessee Constitution and Tennessee Administrative Procedure Act

Section 4-5-202 of the Tennessee APA:

(a) An agency shall precede all its rulemaking with notice and a public hearing unless:

(1) The rule is adopted as an emergency rule; or

(2) The proposed rule is posted to the administrative register web site within the secretary of state's web site within seven (7) days of receipt, together with a statement that the agency will adopt the proposed rule without a public hearing unless within ninety (90) days after filing of the proposed rule with the secretary of state, a petition for a public hearing on the proposed rule is filed by ten (10) persons who will be affected by the rule, an association of ten (10) or more members, a municipality or by a majority vote of any standing committee of the general assembly. If an agency receives such a petition, it shall not proceed with the proposed rulemaking until it has given notice and held a hearing as provided in this section. The agency shall forward the petition to the secretary of state. The secretary of state shall not be required to compile all filings of the preceding month into one (1) document.^[13]

Vermont

See also: Vermont Constitution and Vermont Administrative Procedure Act

Section 836 of the Vermont APA:


	(a) Except for emergency rules, rules shall be adopted by taking the following steps: ... (4) holding a public hearing and receiving comments;^[14]

Washington

See also: Washington Constitution and Washington Administrative Procedure Act

Section 34.05.325 of the Washington APA:


	(2) The agency shall provide an opportunity for oral comment to be received by the agency in a rule-making hearing.^[15]

West Virginia

See also: West Virginia Constitution and West Virginia Administrative Procedure Act

Section 29A-3-5 of the West Virginia APA:

The notice shall fix a date, time and place for the receipt of public comment in the form of oral statements, written statements and documents bearing upon any findings and determinations which are a condition precedent to the final approval by the agency of the proposed rule and shall contain a general description of the issues to be decided. If no specific findings and determinations are required as a condition precedent to the final approval by the agency of the approved rule, the notice shall fix a date, time and place for the receipt of general public comment on the proposed rule. To comply with the public comment provisions of this section, the agency may hold a public hearing or schedule a public comment period for the receipt of written statements and documents, or both.

If findings and determinations are a condition precedent to the promulgation of such rule, then an opportunity for general public comment on the merits of the rule shall be afforded after such findings and determinations are made. In such event, notice of the hearing or of the period for receiving public comment on the proposed rule shall be attached to and filed as a part of the findings and determinations of the agency when filed in the State Register.^[16]

Wisconsin

See also: Wisconsin Constitution and Wisconsin Administrative Procedure Act

Section 227.16 of the Wisconsin APA:


	(1) In addition to any preliminary public hearing and comment period held under s. 227.136, all rule making by an agency shall be preceded by notice and public hearing as provided in ss. 227.17 and 227.18, except as provided in sub. (2).^[17]

Text of state APA provisions requiring agencies to use formal rulemaking procedures when requested

This section contains text from state APAs that required agencies to hold a public hearing before adopting a final rule when enough members of the public request one.

Some sections display whole articles from a state APA while others only show relevant segments.

Arkansas

See also: Arkansas Constitution and Arkansas Administrative Procedure Act

Section 25-15-204 of the Arkansas APA:

(a) Prior to the adoption, amendment, or repeal of a rule, the agency shall: ...

(A) Afford all interested persons reasonable opportunity to submit written data, views, or arguments, orally or in writing.

(B) The agency shall grant an opportunity for an oral hearing if requested by twenty-five (25) persons, by a governmental subdivision or agency, or by an association having at least twenty-five (25) members.^[18]

California

See also: California Constitution and California Administrative Procedure Act

Section 11346.5 of the California APA:


	(a) The notice of proposed adoption, amendment, or repeal of a regulation shall include the following: ... (17) A statement that if a public hearing is not scheduled, any interested person or his or her duly authorized representative may request, no later than 15 days prior to the close of the written comment period, a public hearing pursuant to Section 11346.8.^[19]

Connecticut

See also: Connecticut Constitution and Connecticut Administrative Procedure Act

Section 4-168 of the Connecticut APA:

(b) Except as provided in subsections (g) and (h) of this section, during the public comment period specified in subsection (a) of this section, all interested persons shall have reasonable opportunity to submit data, views or arguments in writing on the proposed regulation. The agency shall hold a public hearing on the proposed regulation if requested by fifteen persons, by a governmental subdivision or agency or by an association having not less than fifteen members, if notice of the request is received by the agency not later than fourteen days after the date of posting of the notice by the agency on the eRegulations System.^[20]

Florida

See also: Florida Constitution and Florida Administrative Procedure Act

Section 120.54 (3)(c) of the Florida APA:

If the intended action concerns any rule other than one relating exclusively to procedure or practice, the agency shall, on the request of any affected person received within 21 days after the date of publication of the notice of intended agency action, give affected persons an opportunity to present evidence and argument on all issues under consideration. The agency may schedule a public hearing on the rule and, if requested by any affected person, shall schedule a public hearing on the rule. When a public hearing is held, the agency must ensure that staff are available to explain the agency’s proposal and to respond to questions or comments regarding the rule.^[21]

Georgia

See also: Georgia Constitution and Georgia Administrative Procedure Act

Section 50-13-4 of the Georgia APA:

(a) Prior to the adoption, amendment, or repeal of any rule, other than interpretive rules or general statements of policy, the agency shall: ...

(2) Afford to all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. In the case of substantive rules, opportunity for oral hearing must be granted if requested by 25 persons who will be directly affected by the proposed rule, by a governmental subdivision, or by an association having not less than 25 members. The agency shall consider fully all written and oral submissions respecting the proposed rule. Upon adoption of a rule, the agency, if requested to do so by an interested person either prior to adoption or within 30 days thereafter, shall issue a concise statement of the principal reasons for and against its adoption and incorporate therein its reason for overruling the consideration urged against its adoption;^[22]

Idaho

See also: Idaho Constitution and Idaho Administrative Procedure Act

Section 67-5222 of the Idaho APA:

(1) Prior to the adoption, amendment, or repeal of a rule, the agency shall afford all interested persons reasonable opportunity to submit data, views and arguments, orally or in writing. The agency shall receive comments for not less than twenty-one (21) days after the date of publication of the notice of proposed rulemaking in the bulletin.

(2) When promulgating substantive rules, the agency shall provide an opportunity for oral presentation if requested by twenty-five (25) persons, a political subdivision, or an agency. The request must be made in writing and be within fourteen (14) days of the date of publication of the notice of proposed rulemaking in the bulletin, or within fourteen (14) days prior to the end of the comment period, whichever is later. An opportunity for oral presentation need not be provided when the agency has no discretion as to the substantive content of a proposed rule because the proposed rule is intended solely to comply:

(a) with a controlling judicial decision or court order; or

(b) with the provisions of a statute or federal rule that has been amended since the adoption of the agency rule.^[23]

Illinois

See also: Illinois Constitution and Illinois Administrative Procedure Act

Section 5-40 of the Illinois APA:

(b) Each agency shall give at least 45 days' notice of its intended action to the general public. This first notice period shall commence on the first day the notice appears in the Illinois Register. The first notice shall include all the following: ...

(5) The time, place, and manner in which interested persons may present their views and comments concerning the proposed rulemaking.

During the first notice period, the agency shall accept from any interested persons data, views, arguments, or comments. These may, in the discretion of the agency, be submitted either orally or in writing or both. The notice published in the Illinois Register shall indicate the manner selected by the agency for the submissions. The agency shall consider all submissions received.

The agency shall hold a public hearing on the proposed rulemaking during the first notice period if (i) during the first notice period, the agency finds that a public hearing would facilitate the submission of views and comments that might not otherwise be submitted or (ii) the agency receives a request for a public hearing, within the first 14 days after publication of the notice of proposed rulemaking in the Illinois Register, from 25 interested persons, an association representing at least 100 interested persons, the Governor, the Joint Committee on Administrative Rules, or a unit of local government that may be affected. At the public hearing, the agency shall allow interested persons to present views and comments on the proposed rulemaking.^[24]

Iowa

See also: Iowa Constitution and Iowa Administrative Procedure Act

Section 17A.4 of the Iowa APA:

1. Prior to the adoption, amendment, or repeal of any rule an agency shall: ...

b. Afford all interested persons not less than twenty days to submit data, views, or arguments in writing. If timely requested in writing by twenty-five interested persons, by a governmental subdivision, by the administrative rules review committee, by an agency, or by an association having not less than twenty-five members, the agency must give interested persons an opportunity to make oral presentation.^[25]

Louisiana

See also: Louisiana Constitution and Louisiana Administrative Procedure Act

Section 953 of the Louisiana APA:

A. Prior to the adoption, amendment, or repeal of any rule, the agency shall: ...

(2)(a) Afford all interested persons reasonable opportunity to submit data, views, comments, or arguments, orally or in writing. In case of substantive rules, opportunity for oral presentation or argument must be granted if requested within twenty days after publication of the rule as provided in this Subsection, by twenty-five persons, by a governmental subdivision or agency, by an association having not less than twenty-five members, or by a committee of either house of the legislature to which the proposed rule change has been referred under the provisions of R.S. 49:968.^[26]

Maine

See also: Maine Constitution and Maine Administrative Procedure Act

Section 8052 of the Maine APA:


	Prior to the adoption of any rule, the agency shall give notice as provided in section 8053 and may hold a public hearing, except that a public hearing must be held if otherwise required by statute or requested by any 5 interested persons or if the rule is a major substantive rule as defined in section 8071, subsection 2, paragraph B.^[27]

Minnesota

See also: Minnesota Constitution and Minnesota Administrative Procedure Act

Section 14.22 of the Minnesota APA:

(a) Unless an agency proceeds directly to a public hearing on a proposed rule and gives the notice prescribed in section 14.14, subdivision 1a, the agency shall give notice of its intention to adopt a rule without public hearing. ...

The notice must include a statement advising the public: ...

(3) that if 25 or more persons submit a written request for a public hearing within the 30-day comment period, a public hearing will be held;^[28]

Montana

See also: Montana Constitution and Montana Administrative Procedure Act

Section 2-4-304 (4) of the Montana APA:

Prior to the adoption, amendment, or repeal of any rule, the agency shall afford interested persons at least 20 days' notice of a hearing and at least 28 days from the day of the original notice to submit data, views, or arguments, orally or in writing. If an amended or supplemental notice is filed, additional time may be allowed for oral or written submissions. In the case of substantive rules, the notice of proposed rulemaking must state that opportunity for oral hearing must be granted if requested by either 10% or 25, whichever is less, of the persons who will be directly affected by the proposed rule, by a governmental subdivision or agency, by the appropriate administrative rule review committee, or by an association having not less than 25 members who will be directly affected. If the proposed rulemaking involves matters of significant interest to the public, the agency shall schedule an oral hearing.^[29]

Mississippi

See also: Mississippi Constitution and Mississippi Administrative Procedure Act

Section 25-43-3.104(2)(a) of the Mississippi APA:

(2) (a) An agency, in its discretion, may schedule an oral proceeding on any proposed rule. However, an agency shall schedule an oral proceeding on a proposed rule if, within twenty (20) days after the proper filing of the notice of proposed rule adoption, a written request for an oral proceeding is submitted by a political subdivision, an agency or ten (10) persons. At that proceeding, persons may present oral or written argument, data and views on the proposed rule.^[30]

New Jersey

See also: New Jersey Constitution and New Jersey Administrative Procedure Act

Section 52:14B-4 of the New Jersey APA:

(a) Prior to the adoption, amendment, or repeal of any rule, except as may be otherwise provided, the agency shall: ...

(3) Afford all interested persons a reasonable opportunity to submit data, views, comments, or arguments, orally or in writing. The agency shall consider fully all written and oral submissions respecting the proposed rule, including any written submissions that are received by the agency through its e-mail systems or electronic mailing lists. If within 30 days of the publication of the proposed rule sufficient public interest is demonstrated in an extension of the time for submissions, the agency shall provide an additional 30-day period for the receipt of submissions by interested parties. The agency shall not adopt the proposed rule until after the end of that 30-day extension.

The agency shall conduct a public hearing on the proposed rule at the request of a committee of the Legislature, or a governmental agency or subdivision, or if sufficient public interest is shown, provided such request is made to the agency within 30 days following publication of the proposed rule in the Register. The agency shall provide at least 15 days' notice of such hearing, shall publish such hearing notice on its Internet website, and shall conduct the hearing in accordance with the provisions of subsection (g) of this section.^[31]

North Carolina

See also: North Carolina Constitution and North Carolina Administrative Procedure Act

Section 150B-21.2 of the North Carolina APA:

(a) Steps. - Before an agency adopts a permanent rule, the agency must comply with the requirements of G.S. 150B-19.1, and it must take the following actions: ...

(e) Hearing. - An agency must hold a public hearing on a rule it proposes to adopt if the agency publishes the text of the proposed rule in the North Carolina Register and the agency receives a written request for a public hearing on the proposed rule within 15 days after the notice of text is published. The agency must accept comments at the public hearing on both the proposed rule and any fiscal note that has been prepared in connection with the proposed rule.^[32]

Oklahoma

See also: Oklahoma Constitution and Oklahoma Administrative Procedure Act

Section 75-303(C) of the Oklahoma APA:

C. 1. If the published notice does not already provide for a hearing, an agency shall schedule a hearing on a proposed rule if, within thirty (30) days after the published notice of the proposed rule adoption, a written request for a hearing is submitted by:

a.at least ten persons,

b.a political subdivision,

c.an agency, or

d.an association having not less than twenty-five members.

At that hearing persons may present oral argument, data, and views on the proposed rule.^[33]

Oregon

See also: Oregon Constitution and Oregon Administrative Procedure Act

Section 183.335(3)(a) of the Oregon APA:

(3)(a) When an agency proposes to adopt, amend or repeal a rule, it shall give interested persons reasonable opportunity to submit data or views. Opportunity for oral hearing shall be granted upon request received from 10 persons or from an association having not less than 10 members before the earliest date that the rule could become effective after the giving of notice pursuant to subsection (1) of this section.^[34]

Rhode Island

See also: Rhode Island Constitution and Rhode Island Administrative Procedure Act

Section 42-35-2.8 of the Rhode Island APA:

(c) Unless a hearing is required by law of this state other than this chapter, an agency is not required to hold a hearing on a proposed rule but may do so. Opportunity for a hearing must be granted if a request is received by twenty-five (25) persons, or by a governmental agency, or by an association having not less than twenty-five (25) members, within ten (10) days of a notice posted in accordance with subsection (a). A hearing must be open to the public, recorded, and held at least five (5) days before the end of the public-comment period.^[35]

South Carolina

See also: South Carolina Constitution and South Carolina Administrative Procedure Act

Section 1-23-110 of the South Carolina APA:

(A) Before the promulgation, amendment, or repeal of a regulation, an agency shall: ...

(3) give notice of a public hearing at which the agency will receive data, views, or arguments, orally and in writing, from interested persons on proposed regulations by publication of a notice in the State Register if requested by twenty-five persons, by a governmental subdivision or agency, or by an association having not less than twenty-five members.^[36]

Texas

See also: Texas Constitution and Texas Administrative Procedure Act

Section 2001.029 of the Texas APA:

(a) Before adopting a rule, a state agency shall give all interested persons a reasonable opportunity to submit data, views, or arguments, orally or in writing.

(b) A state agency shall grant an opportunity for a public hearing before it adopts a substantive rule if a public hearing is requested by:

(1) at least 25 persons;

(2) a governmental subdivision or agency; or

(3) an association having at least 25 members.

(c) A state agency shall consider fully all written and oral submissions about a proposed rule.^[37]

Utah

See also: Utah Constitution and Utah Administrative Procedure Act

Section 63G-3-302 of the Utah Administrative Rulemaking Act:

(1) Each agency may hold a public hearing on a proposed rule, amendment to a rule, or repeal of a rule during the public comment period.

(2) Each agency shall hold a public hearing on a proposed rule, amendment to a rule, or repeal of a rule if:

(a) a public hearing is required by state or federal mandate;

(b)

(i) another state agency, 10 interested persons, or an interested association having not fewer than 10 members request a public hearing; and

(ii) the agency receives the request in writing not more than 15 days after the publication date of the proposed rule.^[38]

Virginia

See also: Virginia Constitution and Virginia Administrative Procedure Act

Section 2.2-4007.01(B) of the Virginia APA:

B. Agencies shall state in the Notice of Intended Regulatory Action whether they plan to hold a public hearing on the proposed regulation after it is published. Agencies shall hold such public hearings if required by basic law. If the agency states an intent to hold a public hearing on the proposed regulation in the Notice of Intended Regulatory Action, then it shall hold the public hearing. If the agency states in its Notice of Intended Regulatory Action that it does not plan to hold a hearing on the proposed regulation, then no public hearing is required unless, prior to completion of the comment period specified in the Notice of Intended Regulatory Action, (i) the Governor directs the agency to hold a public hearing or (ii) the agency receives requests for a public hearing from at least 25 persons.^[39]

Wyoming

See also: Wyoming Constitution and Wyoming Administrative Procedure Act

Section 16-3-103 of the Wyoming APA:

(a) Prior to an agency's adoption, amendment or repeal of all rules other than interpretative rules or statements of general policy, the agency shall: ...

(ii) Afford all interested persons reasonable opportunity to submit data, views or arguments, orally or in writing, provided this period shall consist of at least forty-five (45) days from the later of the dates specified under subparagraph (A) of this paragraph, and provided:

(A) In the case of substantive rules, opportunity for oral hearing shall be granted if requested by twenty-five (25) persons, or by a governmental subdivision, or by an association having not less than twenty-five (25) members.^[40]

Text of state APA provisions allowing agencies the option to use formal rulemaking procedures

This section contains text from state APAs that gave agencies the option to hold a public hearing before adopting a final rule.

Some sections display whole articles from a state APA while others only show relevant segments.

Alaska

See also: Alaska Constitution and Alaska Administrative Procedure Act

Section 44.62.210 of the Alaska APA:

(a) On the date and at the time and place designated in the notice the agency shall give each interested person or the person's authorized representative, or both, the opportunity to present statements, arguments, or contentions in writing, with or without opportunity to present them orally. The state agency may accept material presented by any form of communication authorized by this chapter and shall consider all factual, substantive, and other relevant matter presented to it before adopting, amending, or repealing a regulation. When considering the factual, substantive, and other relevant matter, the agency shall pay special attention to the cost to private persons of the proposed regulatory action.^[41]

New Mexico

See also: New Mexico Constitution and New Mexico Administrative Procedure Act

Section 12-8-4 of the New Mexico APA:

A. Prior to the adoption, amendment or repeal of any rule, the agency shall, within the time specified by law, or if no time is specified, then at least thirty days prior to its proposed action:

...

(a) give the time and place of any public hearing or state the manner in which data, views or arguments may be submitted to the agency by any interested person^[42]

Text of state APA provisions requiring agencies to use formal rulemaking procedures for certain rules

This section contains text from state APAs that required agencies to hold a public hearing for certain types of rules.

Massachusetts

See also: Massachusetts Constitution and Massachusetts Administrative Procedure Act

Section 2 of the Massachusetts APA requires agencies to hold a public hearing before adopting rules that carry fines or prison time as penalties:


	A public hearing is required prior to the adoption, amendment, or repeal of any regulation if: (a) violation of the regulation is punishable by fine or imprisonment; or, (b) a public hearing is required by the enabling legislation of the agency or by any other law; or, (c) a public hearing is required as a matter of constitutional right.^[43]

North Dakota

See also: North Dakota Constitution and North Dakota Administrative Procedure Act

Section 28-32-11 of the North Dakota APA requires agencies to conduct oral hearings for substantive rules:

The agency or commission shall adopt a procedure whereby all interested persons are afforded reasonable opportunity to submit data, views, or arguments, orally or in writing, concerning the proposed rule, including data respecting the impact of the proposed rule. The agency or commission shall adopt a procedure to allow interested parties to request and receive notice from the agency or commission of the date and place the rule will be reviewed by the administrative rules committee. In case of substantive rules, the agency or commission shall conduct an oral hearing. The agency or commission shall consider fully all written and oral submissions respecting a proposed rule prior to the adoption, amendment, or repeal of any rule not of an emergency nature.^[44]

Footnotes

[al-1] JUSTIA, "Alabama Administrative Procedure Act, Section 41-22-5 - Notice of intent to adopt, amend, or repeal rules; adoption of emergency rules; procedural requirements; proceedings to contest rules," accessed February 5, 2020

[az-2] JUSTIA, "2017 Arizona Revised Statutes, Title 41 - State Government § 41-1021 Public rule making docket; notice," accessed February 5, 2020

[co-3] State of Colorado, "C.R.S. Title 24 Government - State," accessed February 5, 2020

[hi-4] JUSTIA, "2017 Hawaii Revised Statutes, TITLE 8. PUBLIC PROCEEDINGS AND RECORDS 91. Administrative Procedure 91-3 Procedure for adoption, amendment, or repeal of rules," accessed February 5, 2020

[in-5] Indiana General Assembly, "Indiana Code, Title 4, Article 22, Chapter 2, Section 26," accessed February 5, 2020

[ky-6] JUSTIA, "2017 Kentucky Revised Statutes, CHAPTER 13A - ADMINISTRATIVE REGULATIONS .270 Public hearing and comments -- Notice --Communication by email regarding administrative regulations -- When notification of regulations compiler required.," accessed February 5, 2020

[mi-7] Michigan Legislature, "Administrative Procedures Act of 1969," accessed February 5, 2020

[ne-8] FindLaw, "Nebraska Revised Statutes Chapter 84. State Officers § 84-907. Rule or regulation; adoption; amendment; repeal; hearing; notice; procedure; exemption," accessed February 5, 2020

[nv-9] JUSTIA, "2017 Nevada Revised Statutes, Chapter 233B - Nevada Administrative Procedure Act, NRS 233B.061 - Proposed permanent or temporary regulation: Public comment; workshop; public hearing; applicability of Open Meeting Law," accessed February 6, 2020

[nh-10] JUSTIA, "2017 New Hampshire Revised Statutes, Title LV - PROCEEDINGS IN SPECIAL CASES, Chapter 541-A - ADMINISTRATIVE PROCEDURE ACT, Section 541-A:3 - Procedure for Adoption of Rules," accessed February 6, 2020

[oh-11] JUSTIA, "2017 Ohio Revised Code, Title 1 I STATE GOVERNMENT, Chapter 119 - ADMINISTRATIVE PROCEDURE, Section 119.03 - Procedure for adoption, amendment, or rescission of rules," accessed February 6, 2020

[sd-12] JUSTIA, "2017 South Dakota Codified Laws, Title 1 - STATE AFFAIRS AND GOVERNMENT, Chapter 26 - Administrative Procedure and Rules, § 1-26-4 Notice, service, and hearing required for adoption, amendment, or repeal of rules--Service on interim rules committee--Waiver of service," accessed February 6, 2020

[tn-13] JUSTIA, "2017 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-202. When hearings required," accessed February 6, 2020

[vt-14] Vermont Legislature, "Title 3 : Executive Chapter 025 : Administrative Procedure, Subchapter 003 : Rulemaking; Procedures; Guidance Documents," accessed February 6, 2020

[wa-15] JUSTIA, "2017 Revised Code of Washington, Title 34 - ADMINISTRATIVE LAW, 34.05 Administrative Procedure Act. 34.05.325 Public participation—Concise explanatory statement," accessed February 6, 2020

[wv-16] JUSTIA, "2017 West Virginia Code CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT. ARTICLE 3. RULE MAKING. §29A-3-5. Notice of proposed rulemaking," accessed February 6, 2020

[wi-17] Wisconsin Legislature, "Administrative Procedure and Review," accessed February 6, 2020

[ar-18] JUSTIA, "2017 Arkansas Code Title 25 - State Government Chapter 15 - Administrative Procedures, Subchapter 2 - Administrative Procedure Act § 25-15-204. Rules -- Procedure for adoption," accessed February 6, 2020

[ca-19] JUSTIA, "2017 California Code, Government Code - GOV TITLE 2 - GOVERNMENT OF THE STATE OF CALIFORNIA, DIVISION 3 - EXECUTIVE DEPARTMENT, PART 1 - STATE DEPARTMENTS AND AGENCIES CHAPTER 3.5 - Administrative Regulations and Rulemaking ARTICLE 5 - Public Participation: Procedure for Adoption of Regulations Section 11346.5.," accessed February 6, 2020

[ct-20] Connecticut General Assembly, "CHAPTER 54 UNIFORM ADMINISTRATIVE PROCEDURE ACT," accessed February 6, 2020

[fl-21] JUSTIA, "2017 Florida Statutes, TITLE X - PUBLIC OFFICERS, EMPLOYEES, AND RECORDS, Chapter 120 - ADMINISTRATIVE PROCEDURE ACT 120.54 - Rulemaking," accessed February 5, 2020

[ga-22] JUSTIA, "2017 Georgia Code, Title 50 - State Government, Chapter 13 - Administrative Procedure, Article 1 - General Provisions § 50-13-4. Procedural requirements for adoption, amendment, or repeal of rules; emergency rules; limitation on action to contest rule; legislative override," accessed February 6, 2020

[id-23] Idaho Legislature, "Idaho Administrative Procedure Act," accessed February 6, 2020

[il-24] JUSTIA, "2017 Illinois Compiled Statutes, Chapter 5 - GENERAL PROVISIONS 5 ILCS 100/ - Illinois Administrative Procedure Act. Article 5 - Rulemaking Provisions," accessed February 6, 2020

[ia-25] JUSTIA, "2018 Iowa Code, Title I - STATE SOVEREIGNTY AND MANAGEMENT Chapter 17A - IOWA ADMINISTRATIVE PROCEDURE ACT Section 17A.4 - Procedure for adoption of rules," accessed February 6, 2020

[la-26] JUSTIA, "2017 Louisiana Laws Revised Statutes, TITLE 49 - State Administration RS 49:953 - Procedure for adoption of rules," accessed February 6, 2020

[me-27] JUSTIA, "2017 Maine Revised Statutes, TITLE 5: ADMINISTRATIVE PROCEDURES AND SERVICES, Part 18: ADMINISTRATIVE PROCEDURES, Chapter 375: MAINE ADMINISTRATIVE PROCEDURE ACT, Subchapter 2: RULEMAKING 5 §8052. Rulemaking," accessed February 6, 2020

[mn-28] JUSTIA, "2017 Minnesota Statutes, Chapters 14 - 15A — STATE AGENCIES, Chapter 14 — ADMINISTRATIVE PROCEDURE, Section 14.22 — NOTICE OF PROPOSED ADOPTION OF RULES," accessed February 12, 2020

[mt-29] Montana Legislature, "Montana Code Annotated 2019, TITLE 2. GOVERNMENT STRUCTURE AND ADMINISTRATION CHAPTER 4. ADMINISTRATIVE PROCEDURE ACT, Part 3. Adoption and Publication of Rules," accessed February 5, 2020

[ms-30] JUSTIA, "2017 Mississippi Code, Title 25 - Public Officers and Employees; Public Records, Chapter 43 - Administrative Procedures Article 3 - Rule-Making Adoption and Effectiveness of Rules § 25-43-3.104. Public participation," accessed February 6, 2020

[nj-31] JUSTIA, "2017 New Jersey Revised Statutes, TITLE 52 - STATE GOVERNMENT, DEPARTMENTS AND OFFICERS Section 52:14B-4 - Adoption, amendment, repeal of rules," accessed February 6, 2020

[nc-32] JUSTIA, "2016 North Carolina General Statutes, Chapter 150B - Administrative Procedure Act. Article 2A - Rules. § 150B-21.2 - Procedure for adopting a permanent rule.," accessed February 6, 2020

[33] JUSTIA, "2017 Oklahoma Statutes, Title 75. Statutes and Reports §75-303. Adoption, amendment or revocation of rule - Procedure," accessed February 6, 2020

[or-34] JUSTIA, "2017 Oregon Revised Statutes, Volume : 05 - State Government, Government Procedures, Land Use, Chapter 183 - Administrative Procedures Act; Review of Rules; Civil Penalties, Section 183.335 - Notice; content; public comment; temporary rule adoption, amendment or suspension; substantial compliance required," accessed February 6, 2020

[ri-35] JUSTIA, "2016 Rhode Island General Laws, Title 42 - State Affairs and Government, Chapter 42-35 - Administrative Procedures Section 42-35-2.8 - Public participation," accessed February 6, 2020

[sc-36] South Carolina Legislature, "Title 1 - Administration of the Government, CHAPTER 23 State Agency Rule Making and Adjudication of Contested Cases, ARTICLE 1 State Register and Code of Regulations," accessed February 6, 2020

[tx-37] JUSTIA, "2017 Texas Statutes GOVERNMENT CODE TITLE 10, GENERAL GOVERNMENT SUBTITLE A, ADMINISTRATIVE PROCEDURE AND PRACTICE CHAPTER 2001, ADMINISTRATIVE PROCEDURE," accessed February 6, 2020

[ut-38] Utah Legislature, "Utah Administrative Rulemaking Act," accessed February 6, 2020

[va-39] JUSTIA, "2017 Code of Virginia, Title 2.2 - Administration of Government, Chapter 40 - Administrative Process Act § 2.2-4007.01. Notice of intended regulatory action; public hearing," accessed February 6, 2020

[wy-40] JUSTIA, "2015 Wyoming Code, TITLE 16 - CITY, COUNTY, STATE AND LOCAL POWERS, CHAPTER 3 - ADMINISTRATIVE PROCEDURE, SECTION 16-3-103. -Adoption, amendment and repeal of rules; notice; hearing; emergency rules; proceedings to contest; review and approval by governor," accessed February 6, 2020

[ak-41] Alaska Legislature, "Alaska Administrative Procedure Act," accessed February 5, 2020

[nm-42] JUSTIA, "2017 New Mexico Statutes, Chapter 12 - Miscellaneous Public Affairs Matters, Article 8 - Administrative Procedures Act, Section 12-8-4 - Rulemaking prerequisites," accessed February 6, 2020

[ma-43] JUSTIA, "2017 Massachusetts General Laws, PART I ADMINISTRATION OF THE GOVERNMENT, TITLE III LAWS RELATING TO STATE OFFICERS Chapter 30A STATE ADMINISTRATIVE PROCEDURE, Section 2 Regulations requiring hearings; adoptions, amendments or repeals; small business impact statement; emergency regulations," accessed February 6, 2020

[nd-44] North Dakota Legislature, "Administrative Agencies Practice Act," accessed February 6, 2020

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Nondelegation doctrine: State formal rulemaking requirements (2020)

Summary of findings

States with APA or constitutional provisions requiring agencies to use formal rulemaking procedures

Text of state APA provisions requiring agencies to use formal rulemaking procedures

Alabama

Arizona

Colorado

Hawaii

Indiana

Kentucky

Michigan

Nebraska

Nevada

New Hampshire

Ohio

South Dakota

Tennessee

Vermont

Washington

West Virginia

Wisconsin

Text of state APA provisions requiring agencies to use formal rulemaking procedures when requested

Arkansas

California

Connecticut

Florida

Georgia

Idaho

Illinois

Iowa

Louisiana

Maine

Minnesota

Montana

Mississippi

New Jersey

North Carolina

Oklahoma

Oregon

Rhode Island

South Carolina

Texas

Utah

Virginia

Wyoming

Text of state APA provisions allowing agencies the option to use formal rulemaking procedures

Alaska

New Mexico

Text of state APA provisions requiring agencies to use formal rulemaking procedures for certain rules

Massachusetts

North Dakota

See also

Footnotes

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