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THE COMMISSIONER OF LABOR COULD NOT IMPOSE A NEW “RULE” WHICH HAD NEVER BEEN SUBJECT TO THE FORMAL RULEMAKING REQUIREMENTS IN THE STATE ADMINISTRATIVE PROCEDURE ACT (THIRD DEPT).

The Third Department, annulling the Department of Labor’s (DOL’s) determination, held that the Commissioner’s ruling was based upon a “rule” which had never been subject to the rule-making procedures required by the State Administrative Procedure Act. The Commissioner turned down the petitioner’s application for an O & P license (a license to own, possess and/or transport fireworks) because petitioner did not hold a PCC (an occupational license for the use of pyrotechnics). Making a PCC a requirement for an O & P license constituted a new “rule” which was invalid because the formal rulemaking procedures were never instituted:

… [T]he PCC requirement does not concern “forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory,” all of which are excluded from formal rulemaking … . Instead, mandating access to a PCC for all O & P license applicants is a “[b]lanket requirement[ ] . . . to be generally applied in the future, regardless of individual circumstances” that is subject to the State Administrative Procedure Act’s rulemaking process … . Respondents’ failure to comply with the State Administrative Procedure Act before implementing the mandatory PCC requirement renders that requirement unenforceable … . Matter of Linear Research Assoc., Inc. v Reardon, 2026 NY Slip Op 01434, Third Dept 3-12-26

Practice Point: Consult this decision for insight into the difference between an administrative “rule” which is subject to the formal rulemaking requirements of the State Administrative Procedure Act and a “statement of general policy” which is not.

 

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