Many states have established a robust administrative sector within their borders. The power to create a state-level administrative agency is generally derived from the state’s constitution, which makes provisions for the legislature to delegate its authority to an independent or executive agency. Much like federal agencies, state agencies assist governors and the legislature with administrating policy objectives, implementing new programs, and enforcing statutory laws.
One of the main differences between federal agencies and state agencies is the way in which administrative law judges are organized and assigned to cases. Most federal agencies have their own administrative law judges that handle cases concerning matters over which the agency presides. Some states, however, maintain a central panel of administrative law judges that are assigned to matters within each state agency as they arise.
Most states have adopted a body of statutes similar to the federal Administrative Procedures Act, or APA. These statutory schemes provide a series of rules that govern how an agency operates, how it promulgates rules, and how it must conduct administrative hearings and appeals. Most state agencies require parties seeking to appeal an agency’s final ruling or order to exhaust any appeal remedies within the agency before pursuing an appeal in traditional civil courts. This requirement is known as the exhaustion of remedies doctrine.
Each state has the power to determine the extent to which its agencies will be permitted to promulgate rules. Kentucky, for example, places detailed restrictions on the extent to which state agencies can create laws, while California’s version of the APA provides agencies with substantial rulemaking authority. For example, California has an elaborate body of administrative agencies and laws, including a hearing agency dedicated to the supervision of administrative law judges.
In general, there are four different levels of procedures that may apply to a state agency’s rulemaking endeavors. Formal rulemaking occurs on the record and involves substantial public participation. Most states establish requirements regarding the appropriate notice and public comment procedures in their version of the APA. Second, some statutes provide agencies with the power to engage in informal rulemaking, which does not require public notice and comment. Third, hybrid rulemaking requires some type of public notice or comment but does not rise to the level of formal rulemaking. Last, publication rulemaking is used to promulgate procedural rules and interpretive rules. To enact these rules, the agency need only publish them in the Federal Register. The extent to which each state permits its agencies to engage in all or some of the four different levels of rulemaking is entirely within the state’s discretion.
The public notice and comment requirements for each state vary. For example, some states only require state agencies to publish a notice of a proposed rule in the register, as opposed to the full text of the rule. When it comes to substantive and broadly applicable rules, most states require their agencies to engage in formal rulemaking. When a state agency prepares a new rule, it is commonly required to release the proposed rule for public comment. The agency has the option of conducting a hearing. If the agency does not offer a hearing, an interested party can request one. After the hearing and the public comment period, the agency considers whether to revise the proposed regulation in light of the public comments that were submitted. If the state agency revises the proposed rule, it must reissue the proposed rule for public comment and a potential hearing. Final rules are typically published in the state register for each particular state.