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Monday, March 15, 2010

New York’s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requested

New York’s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requested
Matter of Humane Society of United States, Inc. v Brennan, 63 AD3d 1419

The genesis of this lawsuit was the New York State’s Department of Agriculture and Markets' declining to issue a declaration that foie gras* is an adulterated food product within the meaning of Agriculture and Markets Law §200. The Humane Society of the United States** and various other organizations and individuals generally opposed to the production of foie gras then initiated an CPLR Article 78 action seeking a court order compelling the Commissioner to issue the requested declaration or, in the alternative, a review of his determination not to issue such declaration.

§204 of the State Administrative Procedure Act provides that, when petitioned to issue a declaratory ruling, an agency must either issue the ruling or issue a statement declining to issue such ruling. However, said the Appellate Division, “There is no requirement that the agency issue a declaratory ruling when requested and a petitioner has no rights under the statute other than a timely response by the agency.”***

* Foie gras is a food product derived from the intentionally enlarged livers of ducks and geese. The livers are typically enlarged by force-feeding the birds for approximately two weeks before their slaughter.

** There was a procedural matter involved as well – did the petitioners have standing to maintain this action? The Appellate Division held that “Supreme Court properly granted [the [Commissioner’s] motion to dismiss the petition based on petitioners' lack of standing.”

*** The Appellate Division noted that the Department's regulations provide that "[t]he issuance of a declaratory ruling shall be wholly within the discretion of the commissioner." (see 1 NYCRR 368.1 [c]).

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