N.Y. Comp. Codes R. & Regs. tit. 14 § 602.11

Current through Register Vol. 46, No. 45, November 2, 2024

Section 602.11 - Declaratory rulings

Notwithstanding section 602.2 of this Part, this section shall apply and be controlling in petitions seeking declaratory rulings pursuant to Section 204 of the State Administrative Procedure Act.

(a)Applicability.

Upon petition, the Office for People With Developmental Disabilities may issue a declaratory ruling with respect to:

(1) the applicability of any rule or statute enforceable by it; or

(2) whether any action by the Office for People With Developmental Disabilities should be taken pursuant to a rule.

(b)Procedures.

(1) Petitions for declaratory rulings shall:

(i) include the name and address of petitioner;

(ii) state that a declaratory ruling is requested;

(iii) state clearly and concisely all relevant facts and circumstances involved in the controversy or uncertainty which is the subject matter of the petition;

(iv) specify the regulation or statutory provision enforceable by the office, the applicability of which is to be determined, or identify with particularity the action with respect to which the declaratory ruling is sought;

(v) demonstrate a sufficient interest, or good cause for, the issuance of a declaratory ruling;

(vi) fully disclose the interest of the petitioner in the regulation or statutory provision, the applicability of which is to be determined in the action sought; and

(vii) [Reserved]

(viii) be addressed and mailed to the OPWDD Office of the Counsel, 44 Holland Avenue, Albany, NY 12229, return receipt requested. The returned post office receipt shall constitute proof of service, which shall be deemed effective on the day such petition is received.

(2) Duties of petitioner. Upon request of the OPWDD Office of Counsel, petitioner for a declaratory ruling shall promptly correct any deficiencies in the filed petition and furnish to the Office of Counsel the originals, or certified or verified copies, of all books, papers and documents which may be requested. Failure to do so may be grounds for refusing to issue a declaratory ruling.

(3) Review. The Office of Counsel shall review such petitions and recommend to the Commissioner:

(i) that a declaratory ruling be made;

(ii) that the petition received is incomplete and must be completed before a decision can be made as to the issuance of a declaratory ruling; or

(iii) that a declaratory ruling should not be made, specifying the reasons for such recommendation.

(4) Rulings.

(i) Requests for declaratory rulings pursuant to paragraph (a)(1) of this section shall be denied or the ruling issued within 30 days of the receipt of a completed petition.

(ii) Requests for declaratory rulings pursuant to paragraph (a)(2) of this section shall be denied or the ruling issued within 60 days of a completed petition.

(iii) no opinion, letter of advice, or other communication shall be construed as a declaratory ruling unless it contains a statement that it is a declaratory ruling and is issued in response to a petition that complies with this section.

(c)Force and effect of declaratory rulings.

(1) Declaratory rulings shall be binding on the OPWDD and the requesting party and may not be retroactively changed.

(2) Nothing in this section shall prevent the commissioner from prospectively changing any declaratory ruling.

(3) Declaratory rulings shall be made available to the public, and shall be subject to review in the manner provided for in article 78 of the Civil Practice Law and Rules.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 602.11

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016