Legal Memorandum RU01

CONSENSUS RULES FOR STATE AGENCIES

On July 7, 1998, the Governor signed a bill into law which made significant changes in the way that noncontroversial rules are adopted by New York State agencies. [LINK--CHAPTER 210] These changes, which were effective on October 1, 1998, permit an expedited process to be used when an agency expects that no person is likely to object to the adoption of a rule. These noncontroversial rules are called "consensus rules."

BACKGROUND

When the Legislature enacts a law in New York State, it often delegates to state agencies the power to make rules to implement the broad policies found in the law. Agencies must proceed through a rule making process to adopt these rules. Prior to October 1, 1998, rules categorized as either minor rules, obsolete rules, or invalid rules went through similar, simplified rule making processes. All other rules were required to satisfy and must continue to satisfy more comprehensive requirements.

CHAPTER 210 OF THE LAWS OF 1998

Chapter 210 of the Laws of 1998 was enacted to streamline the rule making process. Minor rule making, obsolete rule making, and invalid rule making were repealed by this law, because many rules that were noncontroversial did not fit into any of these categories. The Legislature enacted Chapter 210 so that all noncontroversial rules could be adopted by the simplified process set forth in consensus rule making.

WHEN MAY A RULE BE FILED AS A "CONSENSUS RULE?"

Chapter 210 states that a rule may be filed as a consensus rule if no person is likely to object to its adoption, and the rule either (1) repeals regulatory provisions which are no longer applicable to any person, (2) implements nondiscretionary statutory standards or conforms a rule to these standards, or (3) makes technical changes or is otherwise noncontroversial. In summary, Chapter 210 permits outdated rules, rules which are required by law, technical rules, and unobjectionable rules to be filed as consensus rules.

WHAT ARE THE PROCEDURAL REQUIREMENTS FOR A "CONSENSUS RULE?"

The Governor’s Office of Regulatory Reform issued an opinion letter on September 22, 1998 stating that consensus rules are not required to be reviewed pursuant to Executive Order #20 of 1995 prior to their submission for publication in the State Register. [LINK--GORR]

A State agency need not comply with most of the procedural requirements of the State Administrative Procedure Act when it proposes a consensus rule. A proposed consensus rule will consist of three basic items: (1) the text of the rule, (2) the statutory authority for the rule, and (3) a statement which provides the basis for the agency’s determination that no person is likely to object to the rule.

Chapter 210 does not contain a provision which grants agencies an exemption from the State Administrative Procedure Act requirement that either a Job Impact Statement or a Statement in Lieu of a Job Impact Statement be filed with a rule making. Until this technical oversight is corrected, a filing submitted as a consensus rule must contain one of these two statements.

When proceeding with a consensus rule, an agency may dispense with public hearings in most instances. Public hearings are only required if a statutory requirement for hearings exists which is explicitly directed at the rule being proposed.

If an agency receives any comment objecting to a consensus rule, the rule must be withdrawn. A proposed rule which is subject to the requirements of the regular rule making process may then be submitted.

If you need further information on consensus rules, please call the Office of Counsel of the Department of State at (518) 474-6740, send a fax to (518) 473-9211, or write to the Department of State, Office of Counsel, One Commerce Plaza, 99 Washington Avenue, Albany, New York 12231. Rule making forms are available from the Department of State, Division of Administrative Rules, One Commerce Plaza, 99 Washington Avenue, Albany, New York 12231 (telephone (518) 474-6957 or fax (518) 473-9055).