An
Introduction to the NYC Rent Guidelines Board
Table of Contents
List of Appendices
APPENDIX
X:
NYC Charter: Sections 1041-1045
CHAPTER
45
CITY ADMINISTRATIVE PROCEDURE ACT
Section
1041. Definitions.
1042. Regulatory agenda.
1043. Rulemaking.
1044. Review of previously adopted rules.
1045. Compilation of City rules.
1046. Adjudication.
1047. Declaratory rules.
§ 1041. Definitions. As used herein, the
term
1. "Adjudication" means a proceeding in
which the legal rights, duties or privileges of
named parties are required by law to be determined
by an agency on a record and after an opportunity
for a hearing.
2. "Agency" means any one or more of the
elected or appointed officers provided for in this
charter and any other official or entity which is
acting (1) under the direction of one or more of
such officers, (2) under the direction of one or
more other officials who are appointed by, or appointed
on the recommendation of, such officers, or (3)
under the direction of a board, the majority of
whose members are appointed by, or appointed upon
the recommendation of, one or more of such officers,
but shall not include the city council.
3. "Compilation" means the Compilation
of city rules required to be published under section
one thousand forty-five.
4. "Law" means federal, state and local
law, this charter and rules issued pursuant thereto.
5. "Rule" means the whole or part of any
statement or communication of general applicability
that (i) implements or applies law or policy, or
(ii) prescribes the procedural requirements of an
agency including an amendment, suspension, or repeal
of any such statement or communication.
a. "Rule" shall
include, but not be limited to, any statement or
communication which prescribes (i) standards which,
if violated, may result in a sanction or penalty;
(ii) a fee to be charged by or required to be paid
to an agency; (iii) standards for the issuance,
suspension or revocation of a license or permit;
(iv) standards for any product, material, or service
which must be met before manufacture, distribution,
sale or use; (v) standards for the procurement of
goods and services; (vi) standards for the disposition
of public property or property under agency control;
or (vii) standards for the granting of loans or
other benefits.
b. "Rule" shall
not include any (i) statement or communication which
relates only to the internal management or personnel
of an agency which does not materially affect the
rights of or procedures available to the public;
(ii) form, instruction, or statement or communication
of general policy, which in itself has no legal
effect but is merely explanatory; (iii) statement
or communication concerning the allocation of agency
resources or personnel; (iv) statement or communication
for guiding, directing or otherwise regulating vehicular
and pedestrian traffic, including but not limited
to any statement or communication controlling parking,
standing, stopping or a construction detour, the
contents of which is indicated to the public in
signs, signals, markings and similar devices, the
determination and installation of which is based
on engineering or other technical considerations
not involving substantial policy considerations;
(v) statement or communication effecting a non-continuous
closing of a street; (vi) statement or communication
adopted pursuant to sections fifty-one, one hundred
ninety-seven-a except pursuant to the first sentence
of subdivision b or the third sentence of subdivision
c of section one hundred ninety-seven-a, one hundred
ninety-seven-c except pursuant to subdivisions i
and l of section one hundred ninety-seven-c, one
hundred ninety-nine, two hundred, two hundred one,
two hundred two and seven hundred five of this charter;
or (vii) building code reference standards amended,
revised or added by the commissioner of the department
of buildings in consultation with the fire commissioner
on all issues relating to fire safety after notice
and a public hearing and published as part of the
administrative code.
§ 1042 Regulatory agenda.
a. Each agency shall publish by the first day of
May annually, a regulatory agenda which shall contain:
1. a brief description of the subject
areas in which it is anticipated that rules may
be promulgated during the next fiscal year, including
a description of the reasons why action by the agency
is being considered;
2. a summary, to the extent known, of
the anticipated contents of each such proposed rule,
its objectives and legal basis;
3. a description of the types of individuals
and entities likely to be subject to the rule;
4. an identification, to the extent
practicable, of all relevant federal, state, and
local laws and rules, including those which may
duplicate, overlap or conflict with the proposed
rule; and
5. an approximate schedule for adopting
the proposed rule, and the name and telephone number
of an agency official knowledgeable about each subject
area involved.
b. Each agency the single head of which is appointed
by the mayor shall forward to the mayor its regulatory
agenda. The mayor shall review such regulatory agenda
to determine whether regulations contemplated by
city agencies are consistent with the policy objectives
of the administration.
c. Failure to include an item in a regulatory agenda
shall not preclude action thereon. If rulemaking
is undertaken on a matter not included in the regulatory
agenda the agency shall include in the notice of
proposed rulemaking the reason the rule was not
anticipated. The inadvertent failure to provide
the reason such rule was not included in the regulatory
agenda shall not serve to invalidate the rule.
§ 1043 Rulemaking.
a. Authority. Each agency is empowered to adopt
rules necessary to carry out the powers and duties
delegated to it by or pursuant to federal, state
or local law. No agency shall adopt a rule except
pursuant to this section. Each such rule shall be
simply written, using ordinary langauge where possible.
b. Notice.
1. Each agency shall publish the full
text of the proposed rule in the City Record at
least thirty days prior to the date set for a public
hearing to be held pursuant to the requirements
of subdivision d of this section or the final date
for receipt of written comments, whichever is earlier.
A proposed rule amending an existing rule shall
contain in brackets any part to be deleted and shall
have underlined or italicized any new part to be
added. A proposed rule repealing an existing rule
shall contain in brackets the rule to be repealed,
or if the full text of the rule was published in
the Compilation required to be published pursuant
to section one thousand forty-five, shall give the
citation of the rule to be repealed and a summary
of its contents. Such published notice shall include
a draft statement of the basis and purpose of the
proposed rule, the statutory authority, including
the particular sections and subdivisions upon which
the action is based, the time and place of public
hearing, if any, to be held or the reason that a
public hearing will not be held, and the final date
for receipt of written comments. If the proposed
rule was not included in the regulatory agenda,
such notice shall also include the reason the rule
was not anticipated, as required in subdivision
c of section one thousand forty-two of this chapter.
2. Copies of the notice shall
be transmitted to the council and the corporation
counsel and mailed to each council member, the chairs
of all community boards, the news media and civic
organizations; provided that an inadvertent failure
to fully comply with the notice requirements of
this paragraph shall not serve to invalidate any
rule.
3. (a) News media, for the purposes
of this subdivision, shall include (i) all radio
and television stations broadcasting in the city
of New York, all newspapers published in the city
of New York having a city-wide or borough-wide circulation,
and any newspaper of any labor union or trade association
representing an industry affected by such rule,
and (ii) any community newspaper or any other publication
that requests such notification on an annual basis.
(b) Civic
organizations, for the purposes of this subdivision,
shall include any city-wide or borough-wide organization
or any labor union, trade association or other group
that requests such notification on an annual basis.
c. Review of statutory authority. The corporation
counsel shall review the proposed rule to determine
whether it is within the authority delegated by
law to the agency proposing the rule. If the corporation
counsel determines that the proposed rule is not
within the agency's delegated authority, the corporation
counsel shall notify the agency in writing prior
to the publication of the final rule in the City
Record.
d. Opportunity for and consideration of agency and
public comment. The agency shall provide the public
an opportunity to comment on the proposed rule (i)
through submission of written data, views, or arguments,
and (ii) at a public hearing unless it is determined
by the agency in writing, which shall be published
in the notice of proposed rulemaking in the City
Record, that such a public hearing on a proposed
rule would serve no public purpose. All written
comments and a summary of oral comments concerning
a proposed rule received from the public or any
agency shall be placed in a public record and be
made readily available to the public as soon as
practicable and in any event within a reasonable
time, not to be delayed because of the continued
pendency of consideration of the proposed rule.
After consideration of the relevant comments presented,
the agency may adopt a final rule pursuant to subdivision
e of this section. Such final rule may include revisions
of the proposed rule, and such adoption of revisions
based on the consideration of relevant agency or
public comments shall not require further notice
and comment pursuant to this section.
e. Effective date.
1. No rule shall
be effective until
(a) the
rule is filed by the agency with the corporation
counsel for publication in the Compilation,
(b) the
rule and a statement of basis and purpose is transmitted
to the council for its information, and
(c) the
rule and a statement of basis and purpose have been
published in the City Record and thirty days have
elapsed after such publication. The requirement
that thirty days shall first elapse after such publication
shall not apply where a finding that a substantial
need for the earlier implementation of a program
or policy has been made by the agency in writing
and has been approved by the mayor prior to the
effective date of the rule and such finding and
approval is contained in the notice.
2. A rule shall
be void if it is not published in the next supplement
to the Compilation in which its publication is practicable;
provided, however, that in the case of an inadvertent
failure to publish a rule in such supplement, the
rule shall become effective as of the date of its
publication, if it is published within six months
of the date the corporation counsel receives notice
of its omission; and further provided that any judicial
or administrative action or proceeding, whether
criminal or civil, commenced under or by virtue
of any provision of a rule voided pursuant to this
section and pending prior to such voidance, may
be prosecuted and defended to final effect in the
same manner as they might if such rule had not been
so voided.
f. Petition for rules. Any person may petition an
agency to consider the adoption of any rule. Within
sixty days after the submission of a petition, the
agency shall either deny such petition in writing,
stating the reasons for denial, or state the agency's
intention to initiate rulemaking, by a specified
date, concerning the subject of such petition. Each
agency shall prescribe by rule the procedure for
submission, consideration and disposition of such
petitions. In the case of a board, commission or
other body that is not headed by a single person,
such rules of procedure may authorize such body
to delegate to its chair the authority to reject
such petitions. Such decision shall be within the
discretion of the agency and shall not be subject
to judicial review.
g. Maintenance of comments. Each agency shall establish
a system for maintaining and making available for
public inspection all written comments received
in response to each notice of rulemaking.
h. Emergency procedures.
1. Notwithstanding
any other provision of this section, an agency may
adopt a rule prior to the notice and comment otherwise
required by this section if the immediate effectiveness
of such rule is necessary to address an imminent
threat to health, safety, property or a necessary
service. A finding of such imminent threat and the
specific reasons for the finding must be made in
writing by the agency adopting such rule and shall
be approved by the mayor before such rule may be
made effective. In the event that an elected official
other than the mayor has the authority to promulgate
rules, such official may make such findings without
prior mayoral approval. The rule and accompanying
finding shall be made public forthwith and shall
be published in the City Record as soon as practicable.
2. A rule adopted
on an emergency basis shall not remain in effect
for longer than sixty days unless the agency has
initiated notice and comment otherwise required
by this section within such sixty day period and
publishes with such notice a statement that an extension
of such rule on an emergency basis is necessary
for an additional sixty days to afford an opportunity
for notice and comment and to adopt a final rule
as required by this section; provided that no further
such finding of an emergency may be made with respect
to the same or a substantially similar rule.
§ 1044 Review of previously adopted rules.
a. Submission of previously adopted rules.
1. By the tenth day of August,
nineteen hundred eight-nine, each agency shall send
to the corporation counsel a copy of each rule,
as defined in subdivision five of section one thousand
forty-one, in force as of the first day of January
of nineteen hundred eight-nine. Each such rule shall
be identified by the agency as one of the following:
(a) a rule which
should be continued in its present form;
(b) a rule which
should be continued with amendments; or
(c) a rule which
should be repealed.
2. Any amendment or repeal
of a rule described in paragraph one of this subdivision,
shall be subject to the provisions set forth in
section one thousand forty-three.
b. In regard to all rules submitted pursuant to
subdivision a of this section, the corporation counsel
shall
1. include such rules in
the Compilation required to be published pursuant
to section one thousand forty-five; provided, however,
that each rule which the agency identifies as a
rule which should be continued but with amendments,
and each rule which the agency identifies as a rule
which should be repealed, shall be published in
the Compilation with an appropriate notation as
to the agency's comments and intentions. Such notations
shall be provided for informational purposes only
and such rule in its present form shall remain in
full force and effect until and unless such rule
is amended or repealed pursuant to the procedures
set forth in section one thousand forty-three, and
2. submit to the City Record
for publication by the first day of September, nineteen
hundred ninety, a list of rules submitted pursuant
to subdivisions a and e of this section, except
for rules contained in the health code. Such list
shall include for each rule a short descriptive
title, as well as any available identifying names,
numbers, adoption dates or similar information regarding
such rule; and an indication of the agency's intention
to continue such rule without amendments, to continue
it with amendments or to repeal it.
c. No rule, as defined in subdivision five of section
one thousand forty-one, which is in force as of
the first day of Janaury, nineteen hundred eighty-nine
shall have any force or effect on or after the tenth
day of August, nineteen hundred and eighty-nine
unless it is submitted by the agency to the corporation
counsel by such date.
d. Except as provided in subdivision e, no rule
adopted by any agency prior to the effective date
of this chapter shall have any force or effect after
the first day of July, nineteen hundred ninety-one
unless it is included in the Compilation required
to be published by that date pursuant to section
one thousand forty-five; provided however that in
the case of an inadvertent failure to publish a
rule in such Compilation, the rule shall become
effective as of the date of its publication, if
it is published within six months from the date
the corporation counsel received notice of its omission,
and further provided that any judicial or administrative
action or proceeding, whether criminal or civil,
commenced under or by virtue of any provision of
a rule voided pursuant to this section and pending
prior to such voidance, may be prosecuted and defended
to final effect in the same manner as they might
if such rule had not been so voided.
e. On or before a date one hundred eighty (180)
days after the publication date that of Compilation
required to be published pursuant to section one
thousand forty-five, any person may submit to the
agency involved a copy or a description of a rule
which such person believes to be in force as of
the effective date of this chapter. Upon the receipt
of a description or copy of such a rule, the agency
shall endeavor to verify the existence of such rule
and upon identifying such rule, if such rule was
if force and effect as of the effective date of
this chapter and has not been submitted to the corporation
counsel pursuant to subdivision a of this section,
the agency shall take the actions required pursuant
to subdivision a of this section, and notwithstanding
the provisions of subdivisions c and d of this section,
such rule shall remain in force and effect until
or unless amended or repealed pursuant to section
one thousand forty-three.
§ 1045 Compilation of city rules.
a. The corporation counsel shall publish a Compilation
of city rules and thereafter keep such Compilation
up to date through supplements issued at least every
six months and at such other times as the corporation
counsel shall determine. The Compilation and its
supplements shall be certified by the corporation
counsel and shall include every rule currently in
effect. The Compilation and its supplements may
contain such other information as the corporation
counsel deems necessary and appropriate for full
understanding of any rule or which the corporation
counsel in his or her discretion determines may
be of interest or assistance to the public. The
Compilation and its supplements shall be organized
by agency and indexed by subject matter. An indexed
edition of the Compilation shall be published by
the first day of July, nineteen hundred and ninety-one,
which date shall be deemed the publication date
of the Compilation, and shall be updated and republished
by the first day of March of every fourth year thereafter.
b. The rules contained within the Compilation and
its supplements shall be certified by the corporation
counsel and shall be the rules of the city unless
added to, amended or repealed in accordance with
section ten hundred forty-three of the charter.
Materials included in the Compilation may be edited,
rearranged and updated for clarity, accuracy and
reorganization without change in substance. Section
numbers, stylistic and organizational formats and
other non-substantive revisions to the rules effected
by the law department pursuant to this subdivision
shall become effective on the publication date of
the Compilation and upon the publication of each
supplement.
c. Documents submitted by an agency pursuant to
subdivision a of section ten hundred forty-four
of the charter which were not formally adopted by
the agency as rules pursuant to section eleven hundred
five of the charter as in effect prior to November
eighth, nineteen hundred eighty-eight shall either
be included in the Compilation or filed in the municipal
reference and research center in the manner provided
below. All documents which the corporation counsel,
in his or her discretion, determines should not
be included in the Compilation shall be organized
by agency and subject matter in a form which shall
be easily accessible to the public and filed by
the corporation counsel in the municipal reference
and research center on or prior to July first nineteen
hundred ninety-one. Notice of such filing and a
list of the documents filed shall be published in
the City Record. Notwithstanding any inconsistent
provision of section ten hundred forty-four of the
charter, any of such documents so filed shall, if
otherwise valid, continue to be effective provided,
however, that the amendment or repeal of any document
which is within the definition of rule set forth
in subdivision five of section ten hundred forty-one
of the charter shall be in accordance with section
ten hundred forty-three of the charter.
