New York Supreme Court

ut is merely explanatory.” Under CAPA, these concepts are distinct, with only
the latter being exempt from the full rulemaking process.
Charter § 1043(d)(4) states that review by the law department and the
mayor’s office, “shall not apply to rules that: … (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.” By implication, such rules
are subject to the other rulemaking requirements – e.g., notice and the opportunity
for public comment. 10
Indeed, CAPA’s general definition of a rule includes a
statement that “implements or applies law….” Charter § 1041(5)(i). Thus, far from
excluding procedures that implement legal mandates from rulemaking, the plain
language of CAPA expressly includes them.
Under DHS’s construction of CAPA, by contrast, any policy adopted by a
city agency pursuant to a mandate in state law, regulation, or administrative
directive would have “no legal effect” and therefore be exempt from rulemaking.
But this is clearly wrong as it would render § 1043(d)(4)(iv) meaningless. See,
e.g., Matter of New York County Lawyers' Ass'n v. Bloomberg, 95 A.D.3d 92, 101
(2012) (“A construction resulting in the nullification of one part of the statute by
10 See 1 McKinney’s Statutes § 240 (Expression of One Thing as Excluding Others).
34