City Administrative Procedure Act (CAPA)
The City Administrative Procedure Act (“CAPA”) is included in Chapter 45 of the New York City Charter, and requires that agencies follow certain deadlines and filing requirements when issuing new rules or making amendments.
A copy of the Act is included below.
§ 1041. Definitions. As used herein, the term
1. "Adjudication" means a proceeding in which the legal rights, dutiesor privileges of named parties are required by law to be determined byan agency on a record and after an opportunity for a hearing.
2. "Agency" means any one or more of the elected or appointed officersprovided for in this charter and any other official or entity which isacting (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 thedirection of a board, the majority of whose members are appointed by, orappointed upon the recommendation of, one or more of such officers, butshall not include the city council.
3. "Compilation" means the Compilation of city rules required to bepublished under section one thousand forty-five.
4. "Law" means federal, state and local law, this charter and rulesissued 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; or (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, on 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.
§ 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 mayduplicate, 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 language 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 e 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 full text of the proposed rule shall be electronically transmitted to the office of the speaker of the council, the council's office of legislative documents, the corporation counsel, each council member, the chairs of all community boards, the news media and civic organizations no later than the date the proposed rule is transmitted to the City Record for publication pursuant to paragraph one of subdivision b of this section; 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.
4. In addition to the requirements set forth in paragraph one of this subdivision, each agency shall provide information regarding the public hearing to be held with regard to a proposed rule in a prominent location on such agency's website at least seven days prior to the date set for such hearing. Each agency shall further provide, in a prominent location on such agency's website, a link to the NYC Rules online portal or any successor city website or page that is substantially similar in form or function. Each agency shall, to the greatest extent practicable, and in addition to the electronic transmissions required by paragraph two of this subdivision, publicize upcoming public hearings via electronic means that are likely to reach interested members of the public. This paragraph shall not be construed to create a private right of action to enforce its provisions. Inadvertent failure to comply with this paragraph shall not result in the invalidation of any rule.
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. 1. The law department and the mayor's office of operations shall review each proposed rule prior to publication of such proposed rule in the City Record. At the conclusion of its review, the law department shall state whether each proposed rule: (i) is drafted so as to accomplish the purpose of the authorizing provisions of law; (ii) is not in conflict with other applicable rules; (iii) to the extent practicable and appropriate, is narrowly drawn to achieve its stated purpose; and (iv) to the extent practicable and appropriate, contains a statement of basis and purpose that provides a clear explanation of the rule and the requirements imposed by the rule. As part of its review, the mayor's office of operations shall analyze each proposed rule and state: (a) whether such rule is understandable and written in plain language; (b) how the drafting process of the rule, to the extent practicable and appropriate, included analysis sufficient to minimize the compliance costs for the discrete regulated community or communities, to the extent one exists, consistent with achieving the stated purpose of the rule; and (c) why, in the event such rule involves the establishment of a violation, modification of a violation or modification of the penalties associated with a violation without also including a cure period, or other opportunity for ameliorative action by the party or parties subject to enforcement, such cure period or other opportunity for ameliorative action was not included. Provided, however, that if the proposed rule solely establishes or modifies the amount of a monetary penalty or penalties then the law department statement required by this paragraph shall not be required and the analysis of the office of operations may be limited to the reason or reasons a cure period or other opportunity for ameliorative action was not included.
2. After completing the review as set forth in paragraph one of this subdivision, the law department and the mayor's office of operations shall certify that they have performed such review, and shall promptly transmit a copy of such certification, including the analysis performed by the mayor's office of operations, to the relevant agency. Such agency shall annex such certification and analysis to the full text of the proposed rule as published in the City Record. Such certification and analysis shall also be made available to the public on the city's website and transmitted to the speaker of the city council at the time of publication. In no event shall a proposed rule be submitted for initial publication in the City Record unless the law department and the mayor's office of operations have issued such certification and analysis.
3. This subdivision shall not be construed to create a private right of action to enforce its provisions. Inadvertent failure to comply withthis subdivision shall not result in the invalidation of any rule.
4. This subdivision shall not apply to rules that: (i) are promulgatedpursuant to the emergency procedures set forth in subdivision i of thissection; (ii) are solely concerned with the establishment ormodification of the amount of a monetary penalty or penalties, and theunderlying violation or a modification of the penalties associated withsuch violation has previously been analyzed in accordance with paragraphone of this subdivision; (iii)are solely concerned with theestablishment or modification of the amount of a fee or fees or (iv)implement particular mandates or standards set forth in newly enactedfederal, state, or local laws, regulations or other requirements with only minor, if any, exercise of agency discretion in interpreting such mandates or standards. If an analysis of a proposed rule is not performed pursuant to the exceptions noted in this paragraph, such factshall be noted and the note annexed to the full text of the proposed rule as published in the City Record.
e. Opportunity for and consideration of agency and public comment. Theagency shall provide the public an opportunity to comment on theproposed rule (i) through outreach to the discrete regulated communityor communities, if one exists, provided that this clause shall not beconstrued to create a private right of action to enforce thisrequirement; (ii) through submission of written data, views, orarguments, and (iii) at a public hearing unless it is determined by theagency in writing, which shall be published in the notice of proposedrulemaking in the City Record, that such a public hearing on a proposedrule would serve no public purpose. All written comments and a summaryof oral comments concerning a proposed rule received from the public orany agency shall be placed in a public record and be made readilyavailable to the public as soon as practicable and in any event within areasonable time, not to be delayed because of the continued pendency ofconsideration of the proposed rule. After consideration of the relevantcomments presented, the agency may adopt a final rule pursuant tosubdivision f of this section; except that, other than a rule adoptedpursuant to subdivision i of this section, no final rule shall beadopted by such board or commission unless its final language is postedin a prominent location on such agency's website and electronicallytransmitted to each member of such board or commission at least threecalendar days, exclusive of Sundays, prior to such rule's adoption;provided, however, that revisions may be made to a final rule postedonline and sent electronically in conformity with this subdivision atany time prior to the vote on such rule if such revisions are approvedby all members of such board or commission by unanimous consent. Suchfinal rule may include revisions of the proposed rule, and such adoptionof revisions based on the consideration of relevant agency or publiccomments shall not require further notice and comment pursuant to thissection. This paragraph shall not be construed to create a private rightof action to enforce its provisions. Inadvertent failure to comply withthis paragraph shall not result in the invalidation of any rule.
f. Effective date. 1. No rule shall be effective until(a) the rule is filed by the agency with the corporation counsel forpublication in the Compilation,(b) the rule and a statement of basis and purpose is transmitted tothe council for its information, and(c) the rule and a statement of basis and purpose have been publishedin the City Record and thirty days have elapsed after such publication.The requirement that thirty days shall first elapse after suchpublication shall not apply where a finding that a substantial need forthe earlier implementation of a program or policy has been made by theagency in writing and has been approved by the mayor prior to theeffective date of the rule and such finding and approval is contained inthe notice.
2. A rule shall be void if it is not published in the next supplementto the Compilation in which its publication is practicable; provided,however, that in the case of an inadvertent failure to publish a rule insuch supplement, the rule shall become effective as of the date of itspublication, if it is published within six months of the date thecorporation counsel receives notice of its omission; and furtherprovided that any judicial or administrative action or proceeding,whether criminal or civil, commenced under or by virtue of any provisionof a rule voided pursuant to this section and pending prior to suchvoidance, may be prosecuted and defended to final effect in the samemanner as they might if such rule had not been so voided.
g. Petition for rules. Any person may petition an agency to considerthe adoption of any rule. Within sixty days after the submission of apetition, the agency shall either deny such petition in writing, statingthe reasons for denial, or state the agency's intention to initiaterulemaking, by a specified date, concerning the subject of suchpetition. Each agency shall prescribe by rule the procedure forsubmission, consideration and disposition of such petitions. In the caseof a board, commission or other body that is not headed by a singleperson, such rules of procedure may authorize such body to delegate toits chair the authority to reject such petitions. Such decision shall bewithin the discretion of the agency and shall not be subject to judicialreview.
h. Maintenance of comments. Each agency shall establish a system formaintaining and making available for public inspection all writtencomments received in response to each notice of rulemaking.
i. Emergency procedures. 1. Notwithstanding any other provision ofthis section, an agency may adopt a rule prior to the notice and commentotherwise required by this section if the immediate effectiveness ofsuch rule is necessary to address an imminent threat to health, safety,property or a necessary service. A finding of such imminent threat andthe specific reasons for the finding must be made in writing by theagency adopting such rule and shall be approved by the mayor before suchrule may be made effective. In the event that an elected official otherthan the mayor has the authority to promulgate rules, such official maymake such findings without prior mayoral approval. The rule andaccompanying finding shall be made public forthwith and shall bepublished in the City Record as soon as practicable. Agencies shall alsoelectronically transmit all emergency rules adopted pursuant to thisparagraph to the office of the speaker of the council, the council'soffice of legislative documents, the corporation counsel, each councilmember, the chairs of all community boards, the news media and civicorganizations, as such term is defined in subdivision b of this section,no later than the date the emergency rules are transmitted to the CityRecord for publication pursuant to this paragraph.
2. A rule adopted on an emergency basis shall not remain in effect forlonger than sixty days unless the agency has initiated notice andcomment otherwise required by this section within such sixty day periodand publishes with such notice a statement that an extension of suchrule on an emergency basis is necessary for an additional sixty days toafford an opportunity for notice and comment and to adopt a final ruleas required by this section; provided that no further such finding of anemergency may be made with respect to the same or a substantiallysimilar rule.