Legal Memorandum RU01: Consensus Rules for State Agencies

CONSENSUS RULES

When a law is enacted by the New York State Legislature, it often delegates rulemaking authority to pertinent state agencies to implement broad policies found in the law.  Agencies follow applicable processes to promulgate rules.

A consensus rule is a type of a proposed rule that undergoes a streamlined rulemaking process based on 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that no person is likely to object to its adoption because it merely (a) repeals regulatory provisions which are no longer applicable to any person, (b) implements or conforms to non-discretionary statutory provisions, or (c) makes technical changes or is otherwise non-controversial.”  State Administrative Procedure Act (SAPA) § 102(11).

When proposing a consensus rule, an agency does not need to comply with many of the procedural requirements applicable to regular proposed rulemakings (i.e., SAPA §§ 202-a (Regulatory impact), 202-b (Regulatory flexibility analysis), and 202-bb (Rural area flexibility analysis)).  A proposed consensus rule consists of four basic items: (1) completed notice of proposed rulemaking form, (2) statement providing the basis for the agency’s determination that no person is likely to object to the rule, (3) text of the rule, and (4) a statement issued pursuant to SAPA § 201-a (Job impact).

SAPA does not require an agency to hold a public hearing on a proposed consensus rule or on any type of proposed rule.  A public hearing on a proposed rule generally must be held only when required by a statute applicable to the rule or the adopting agency, or when an agency has adopted by rule a requirement to hold public hearings on proposed rules. SAPA § 201.  When proceeding with a proposed consensus rule, however, an agency may “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.” SAPA § 103(1)(c).   

It is important to note that if an agency receives any comment objecting to the adoption of a proposed consensus rule during the public comment period, the rule must be withdrawn and may not be adopted as a consensus rule.  The agency may then submit a new notice of proposed rulemaking, which would be subject to SAPA’s regular rulemaking requirements, including a new minimum 60-day public comment period.

HISTORICAL NOTE

Chapter 210 of the Laws of 1998 enabled agencies to propose a greater variety of noncontroversial rules as consensus rules.  Prior to the enactment of Chapter 210, agencies could follow a simplified rulemaking process, which was similar to the current consensus rulemaking process, only when proposed rules could be categorized as “minor,” “obsolete” or “invalid.”  Chapter 210 deleted references to these terms and established the current definition of a consensus rule. SAPA § 102(11).


The Secretary of State is authorized to provide assistance to local governments and general information to the public pursuant to New York State Executive Law, Article 6-B.  The information in this Memorandum is provided pursuant to that authorization, but is informal only and should not be construed as providing legal advice. Local governments and other persons or entities should consult with their own legal counsel for legal advice.

 

Updated March 2021