Rulemaking Process 101

A rule is a type of law that is proposed and adopted by a City agency.  Rules are distinguished from other forms of laws by the process that agencies must follow to enact or amend them.  This process is known as the City Administrative Procedure Act, or CAPA.  The rulemaking process generally takes a minimum of 60 days, and during this period, agencies are required to provide New Yorkers with an opportunity to review and comment on the proposed rules.

The diagram below provides an overview of the key steps in the standard rulemaking process.  Exceptions, including the Final 30-day Waiver and Emergency Rulemaking, are detailed below.

 

Step 1: Agency drafts rule

The New York City Charter gives certain agencies the authority to propose rules.  When an issue arises, agencies analyze the problem and investigate various solutions.  If it is determined that a new rule would be the best course of action, a proposal will be drafted. Agencies also sometimes propose rules because they are mandated by law to do so.

Step 2: Agency notifies public of proposed rule

Before an agency can pass a rule into law, the public must be given the opportunity to review the proposed rule and provide commentary, either by submitting suggestions in writing or by speaking at a public hearing.

To that end, the agency must submit official notice to the City Record, the City Council, community boards, media outlets, and civic organizations, as well as the NYC Rules website.

The official notice must include:

  • The purpose and completed text of the proposed rule
  • An explanation of the legal authority given to the agency
  • Time and place of public hearing
  • Deadline for submitting comments on NYC Rules web site or in writing

Agencies are required to distribute notice of the rule at least 30 days prior to the scheduled public hearing, or the end of the comment period, whichever comes first.

Step 3: Agency holds public hearing

A public hearing is held by the agency to discuss the proposed rule and review all of the testimony that has been submitted.  Testimony includes any written comments submitted on the NYC Rules web site or, through the mail, and spoken testimony provided at the public hearing.

Step 4: Agency publishes final rule
Once all of the testimony has been reviewed, the agency will modify the rules based on the public’s feedback, if necessary, then draft a final version.  A copy is posted on NYC Rules, published in the City Record, and submitted to the City Council.
Step 5: Final rule is adopted and becomes law
The rule takes effect 30 days after the final version is published.

In some cases, agencies must adopt rules quickly and are unable to follow the 60-day process outlined by CAPA.  In these situations, an agency may use the Final 30-Day Waiver or the Emergency Rulemaking Procedure to accelerate the process.

The Final 30-Day Waiver. The 30-day waiting period between publication of the final rule and the date the rule becomes law may be waived by the Mayor if:

  • The agency head certifies that there is a "substantial need for the earlier implementation of a program or policy" that can be achieved through the rule change
  • And if a written statement of need for earlier implementation is signed by the agency head, countersigned by the Mayor and published with the final rule.

If this procedure is followed, the rule becomes effective immediately upon publication in the City Record.

Emergency Rulemaking. In extreme cases, rules must be put into effect immediately after they have been proposed and published in the City Record, in order to avoid "an imminent threat to health, safety, property or a necessary service."  Under such circumstances, an agency may engage in emergency rulemaking by preparing a written statement of imminent threat that is signed by the agency head, countersigned by the Mayor, and published in the City Record with the emergency rule.  An emergency rule becomes effective upon publication and expires after 120 days, unless it is re-adopted by the standard rulemaking procedure.