CHAPTER 210


CHAPTER 210

EXPLANATION--Matter in CAPITAL LETTERS (underscored) is new; matter in brackets
[--] (stricken) is old law to be omitted

LAWS OF NEW YORK, 1998
CHAPTER 210

AN ACT to amend the state administrative procedure act, in relation to consensus rules and repealing certain provisions of such act relating thereto. Became a law July 7, 1998, with the approval of the Governor. Passed by a majority vote, three-fifths being present.

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. Subdivisions 10, 11 and 12 of section 102 of the state administrative procedure act are REPEALED, subdivision 13 of such section is renumbered subdivision 10 and a new subdivision 11 is added to read as follows:

11. "CONSENSUS RULE" MEANS A RULE PROPOSED BY AN AGENCY FOR ADOPTION ON AN EXPEDITED BASIS PURSUANT TO THE EXPECTATION THAT NO PERSON IS LIKELY TO OBJECT TO ITS ADOPTION BECAUSE IT MERELY (A) REPEALS REGULATORY PROVISIONS WHICH ARE NO LONGER APPLICABLE TO ANY PERSON, (B) IMPLEMENTS OR CONFORMS TO NONDISCRETIONARY STATUTORY PROVISIONS, OR (C) MAKES TECHNICAL CHANGES OR IS OTHERWISE NON-CONTROVERSIAL.

§ 2. Paragraph (c) of subdivision 1 of section 103 of the state administrative procedure act, as amended by chapter 621 of the laws of 1992, is amended to read as follows:

(c) Notwithstanding the requirements of any statute, when adopting a [minor] CONSENSUS rule as defined in this chapter, an agency may in its discretion dispense with any statutory requirement for public hearing or publication of a notice in any newspaper or publication other than the state register, unless such requirement is explicitly directed at the rule which is being adopted.

§ 3. Paragraphs (b) and (e) of subdivision 1 of section 202 of the state administrative procedure act, paragraph (b) as added by chapter 668 of the laws of 1991 and paragraph (e) as added by chapter 621 of the laws of 1992, are amended to read as follows:

(b) (i) When an agency submits a notice of proposed rule making as provided in paragraph (a) of this subdivision solely for the purpose of [repealing an obsolete or invalid] PROPOSING A CONSENSUS rule FOR ADOPTION, the agency may dispense with any requirement for public hearing and the requirements of subparagraphs (ii), (iii), (iv), [(v),] (vi) and (vii) of paragraph (f) of this subdivision; provided, however, that such notice [shall identify the particular sections, subdivisions and paragraphs of the rule to be repealed,] shall include a statement setting forth a clear and concise explanation of the [subject, purpose, substance and effect of the rule to be repealed and shall contain a statement describing the specific reasons for such repeal, including any relevant changes in statute or any judicial decision] BASIS FOR THE AGENCY'S DETERMINATION THAT NO PERSON IS LIKELY TO OBJECT TO THE ADOPTION OF THE RULE AS WRITTEN.

(ii) If [,after consideration of] ANY public comment IS RECEIVED ON THE RULE WHICH CONTAINS ANY OBJECTION TO ADOPTION OF A CONSENSUS RULE, the agency [finds that the rule to be repealed is not an obsolete or invalid rule, the agency shall] MUST withdraw [such] THE notice of proposed rule making FOR THE CONSENSUS RULE and may submit a notice of proposed rule making for such rule making which complies with all of the relevant provisions of this subdivision.

(iii) UNLESS OTHERWISE PROVIDED BY LAW, A RULE DEFINED IN SUBPARAGRAPH (ii) OF PARAGRAPH (a) OF SUBDIVISION TWO OF SECTION ONE HUNDRED TWO OF THIS CHAPTER MAY BE ADOPTED AS A CONSENSUS RULE IN ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH; PROVIDED, HOWEVER, THAT FOR THE PURPOSES OF PARAGRAPH (c) OF SUBDIVISION ONE OF SECTION ONE HUNDRED THREE OF THIS CHAPTER, ANY PUBLIC HEARING REQUIRED BY LAW TO BE HELD ON ANY SUCH RULE SHALL BE DEEMED TO BE EXPLICITLY DIRECTED AT SUCH RULE. NO SUCH RULE WHICH IS DEFINED BY THE PUBLIC SERVICE LAW AS A "MAJOR CHANGE" MAY BE ADOPTED AS A CONSENSUS RULE.

(e) [A] WHEN AN AGENCY SUBMITS A notice of proposed rule making for a [minor] rule WHICH WAS PROPOSED FOR ADOPTION AS A CONSENSUS RULE AND SUBSEQUENTLY WITHDRAWN PURSUANT TO PARAGRAPH (b) OF THIS SUBDIVISION, SUCH NOTICE shall identify the PRIOR NOTICE OF proposed rule [as such] MAKING and shall [set forth the basis of the agency for determining that the rule satisfies the statutory definition of a minor rule] BRIEFLY DESCRIBE THE OBJECTION OR OBJECTIONS WHICH CAUSED THE PRIOR NOTICE OF PROPOSED RULE MAKING TO BE WITHDRAWN.

§ 4. Paragraph (c) of subdivision 4-a of section 202 of the state administrative procedure act, as added by chapter 621 of the laws of 1992, is amended to read as follows:

(c) An agency [need] MAY not submit a notice of revised rule making for a rule which has been proposed as a [minor] CONSENSUS rule [; provided, however, that if any substantial revision to the rule would cause it to no longer satisfy the statutory definition of a minor rule, the agency shall not submit a notice of revised rule making, but shall instead submit a notice of proposed rule making pursuant to subdivision one of this section for the rule as revised].

§ 5. Paragraph (d) of subdivision 5 of section 202-a of the state administrative procedure act is REPEALED and paragraph(c) of such subdivision, as added by chapter 668 of the laws of 1991, is amended to read as follows:

(c) A rule determined by an agency to be [an obsolete or invalid] A CONSENSUS rule and proposed pursuant to subparagraph (i) of paragraph (b) of subdivision one of section two hundred two of this article shall be exempt from the requirements of this section.

§ 6. Paragraph (c) of subdivision 3 of section 202-b of the state administrative procedure act is REPEALED and paragraph (b) of such subdivision, as added by chapter 668 of the laws of 1991, is amended to read as follows:

(b) A rule determined by an agency to be [an obsolete or invalid] A CONSENSUS rule and proposed pursuant to subparagraph (i) of paragraph (b) of subdivision one of section two hundred two of this article shall be exempt from the requirements of this section.

§ 7. Paragraph (c) of subdivision 4 of section 202-bb of the state administrative procedure act is REPEALED and paragraph (b) of such subdivision, as added by chapter 171 of the laws of 1994, is amended to read as follows:

(b) A rule determined by an agency to be [an obsolete or invalid] A CONSENSUS rule and proposed pursuant to subparagraph (i) of paragraph (b) of subdivision one of section two hundred two of this article shall be exempt from the requirements of this section.

§ 8. This act shall take effect on the first day of October next succeeding the date on which it shall have become a law, and shall apply to all rules proposed on or after such effective date.