Section 1041.
§ 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; 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, 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.
Section 1042.
§ 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.
Section 1043.
§ 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 with
this subdivision shall not result in the invalidation of any rule.
4. This subdivision shall not apply to rules that: (i) are promulgated
pursuant to the emergency procedures set forth in subdivision i of this
section; (ii) are solely concerned with the establishment or
modification of the amount of a monetary penalty or penalties, and the
underlying violation or a modification of the penalties associated with
such violation has previously been analyzed in accordance with paragraph
one of this subdivision; (iii) are solely concerned with the
establishment or modification of the amount of a fee or fees or (iv)
implement particular mandates or standards set forth in newly enacted
federal, 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 fact
shall 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. The
agency shall provide the public an opportunity to comment on the
proposed rule (i) through outreach to the discrete regulated community
or communities, if one exists, provided that this clause shall not be
construed to create a private right of action to enforce this
requirement; (ii) through submission of written data, views, or
arguments, and (iii) 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 f of this section; except that, other than a rule adopted
pursuant to subdivision i of this section, no final rule shall be
adopted by such board or commission unless its final language is posted
in a prominent location on such agency's website and electronically
transmitted to each member of such board or commission at least three
calendar days, exclusive of Sundays, prior to such rule's adoption;
provided, however, that revisions may be made to a final rule posed
online and sent electronically in conformity with this subdivision at
any time prior to the vote on such rule if such revisions are approved
by all members of such board or commission by unanimous consent. 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. 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.
f. 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.
g. 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.
h. 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.
i. 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. Agencies shall also
electronically transmit all emergency rules adopted pursuant to this
paragraph 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, as such term is defined in subdivision b of this section,
no later than the date the emergency rules are transmitted to the City
Record for publication pursuant to this paragraph.
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.
Section 1044.
§ 1044. Review of previously adopted rules. a. Submission of
previously adopted rules. 1. By the tenth day of August, nineteen
hundred eighty-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 eighty-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 January, 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 days after the publication
date of the 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
in 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.
Section 1045.
§ 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.
Section 1046.
§ 1046. Adjudication. Where an agency is authorized to conduct an
adjudication, it shall act, at a minimum, in accordance with the
provisions set forth below. The parking violations bureau shall not be
subject to the requirements of this section.
a. Notice. All parties shall be given reasonable notice of such
hearing, which shall include:
1. a statement of the nature of the proceeding and the time and place
it will be held, if applicable;
2. a statement of the legal authority and jurisdiction under which the
hearing is to be held, and a reference to the particular sections of the
law and rules involved; and
3. a short and plain statement of the matters to be adjudicated,
including reference to the particular sections of law and rule involved.
b. Notice of agency procedures. Agencies shall adopt rules governing
agency procedures for adjudications and appeals. Agencies shall make a
copy of any such rule available, upon request, to any party who has
received notice of violation of the laws, rules or orders enforced by
the agency.
c. Hearing. 1. All parties shall be afforded an opportunity for a
hearing within a reasonable time. At the hearing the parties shall be
afforded due process of law, including the opportunity to be represented
by counsel, to issue subpoenas or request that a subpoena be issued, to
call witnesses, to cross-examine opposing witnesses and to present oral
and written arguments on the law and facts. Adherence to formal rules of
evidence is not required. No ex parte communications relating to other
than ministerial matters regarding a proceeding shall be received by a
hearing officer, including internal agency directives not published as
rules.
2. Findings of fact shall be based exclusively on the record of the
proceeding as a whole. Except as otherwise provided for by state or
local law, the party commencing the adjudication shall have the burden
of proof.
3. The hearing shall be transcribed or recorded and a copy of the
transcript or record, or any part thereof, shall be made available to
any party to the hearing upon request therefor. A typed or recorded copy
of such transcript shall be provided upon request for a reasonable cost.
d. Informal disposition. Unless precluded by law, informal disposition
may be made of any matter which is the subject of an adjudication by
methods of alternative dispute resolution, stipulation, agreed
settlement, or consent order.
e. Hearing officer. Except as otherwise provided for by this charter
the person presiding at a hearing shall be assigned solely to
adjudicative and related duties. Except as otherwise provided for by the
rules of the agency or by order of the mayor issued in accordance with
subdivisions two and three of section one thousand forty-eight, such
hearing officer shall make final findings of fact and shall not make any
final decision, determination, or order, but shall only recommend such,
and shall forward such recommendation and the record of the adjudication
to the agency, who may adopt, reject or modify any such recommended
decision, determination or order.
f. Recommendation or decision. Any recommended decision, final
decision, determination or order shall be in writing, or stated in the
record if the parties are present, and shall include findings of fact
and conclusions of law. A copy of any written recommended decision,
final decision, determination, or order shall be delivered or mailed
forthwith to each party.
Section 1047.
§ 1047. Declaratory ruling. On the written petition of any person, an
agency may issue a written declaratory ruling on the applicability of
any rule adopted by it, to any person, property, or state of facts. A
declaratory ruling shall be binding only with respect to the person who
makes the petition and only with respect to the stated facts contained
in the petition.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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