N.Y. Comp. Codes R. & Regs. tit. 6 § 481.9

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

Section 481.9 - Procedures to challenge the department's program fee determination

(a) A person having any questions about the basis for the annual program fee or how it was calculated may call the department's central office in Albany at the telephone number listed on the invoice. However, any responses or statements made by the department shall not be binding on the department unless made in writing.

(b) A person may petition the department for a declaratory ruling, in accordance with the procedures contained in Part 619 of this Title, with respect to the applicability to any person of the provisions of article 72 of the ECL or these regulations.

(c) A person deciding to challenge the amount of the annual program fee, must make a written request sent by mail, for a recalculation of the fee on such forms as required and supplied by the department, within 30 business days of the date of the department's original invoice. The request must be sent to: Regulatory Fee and Oil Spill Revenue Bureau, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-5013. The request must be accompanied by an explanation of why a modification in the amount of the program fee imposed is appropriate, a statement of what the revised invoice should be and must include any appropriate documentary evidence in support of the claim. The department will not consider requests for a challenge, and the department's original invoice is considered final, if a person fails to:

(1) make this request within the 30-business-day period;

(2) make payment in full of the undisputed amount of the annual program fee; and

(3) give a specific written reason for challenging the fee. If reasonable cause is shown, the department may consider challenges that have not met the criteria of paragraph (1), (2) or (3) of this subdivision or may continue to proceed with a challenge that has been abandoned under any other sections of section 481.9 of this Part. Requests to consider a challenge that has not met the criteria of paragraph (1), (2) or (3) of this subdivision must be made to the Director of Fiscal Management by certified mail. The Director of Fiscal Management shall respond to the person within 30 business days with the department's decision about considering challenges that do not meet criteria of paragraphs (1), (2) and (3). The original department's invoice must provide notification in at least 10 point bold type of the right to challenge and three prerequisites to a challenge noted above.

(d) Upon receipt of the request for a recalculation, the department will determine whether the original invoice should be revised.

(1) If the department agrees with the person's challenge, it shall notify the person in writing within 45 business days and prepare and send a replacement invoice. If the fee has already been paid in full, the department shall refund any overpayment.

(2) If the department does not agree with the person's challenge it shall notify the person accordingly, in writing within 45 business days with an explanation of the reasons for the disagreement.

(e) If the person receives a notice of disagreement and wants to contest the determination, in order to request a further review, the person must complete a form letter that the department has provided with the original recalculation request settlement stating why they continue to disagree within 15 business days of the date of receipt of the letter. The form letter signifying "continued disagreement" with the department's determination must be sent by certified mail and addressed to the department as indicated on the form letter. Failure to notify the department of continued disagreement within 15 business days will be considered an abandonment of the challenge making the department's determination final. The department's form must state in at least ten point bold type that failure to return the form within 15 business days will be considered an abandonment of the challenge making the department's determination final.

(f) Upon receipt of the request for further review, the Regulatory Fee Determination Unit may arrange for a conference with a department representative, to be held at the department's regional office closest to the regulated activity or at a mutually agreed upon location. The department will give the person at least 10 business-days notice of the time and place of the conference. If the person does not appear personally or by a representative the department will consider the person to have abandoned the challenge making the department's determination final. If no conference is scheduled, the department will proceed with section 481.9(h) of this Part.

(g) The purpose of the conference is to afford the person the opportunity to narrow factual disagreements and define the legal issues involved and to resolve the controversy, if possible. It will be the person's responsibility to precisely state the basis for the challenge and to offer supporting documentation necessary to substantiate the claim.

(h) If agreement cannot be reached, the conference will be concluded and the department's representative will prepare a written statement summarizing the disputed and undisputed issues and send the statement to the person within 15 business days. If a person agrees with the content of the department summary statement, the person must sign the statement and return it to the department within 15 business days of its receipt. The statement will be binding on the department and on the person as to the extent of the claim as well as represent the department's final determination of Regulatory Fee liability. A person objecting to the content of the department's summary statement of issues must prepare and file with the department's representative, an opposing signed statement within 15 business days of receipt of the department's written statement. Failure to timely respond to the summary statement will be considered an abandonment of the challenge making the department's determination final. The summary statement must state in at least 10 point bold type that a person's failure to timely respond to the summary will be considered as an abandonment of the fee challenge, resulting in the department's determination becoming final. Additionally the summary statement must provide the opportunity to sign in agreement or disagreement with the department's final determination. This signature must accompany either the signature in agreement with the summary statement or the signed opposing statement to the summary statement.

(i) If the person has signed the notice in the space for agreement with the department's final determination, the department will prepare and send a recomputed invoice in accord with the resolution, and the challenge will be considered settled. If the fee has been paid in full, the department shall refund any overpayment. If the person has signed the notice in the space for disagreement, the department will then take the necessary steps to convene a hearing on the challenge.

(j) The hearing to be held at the request of the person will be limited to those disputed issues which were specifically raised by the person previously and which were set forth either in the statement of disputed and undisputed issues prepared by the department's representative and which was signed by the person or in the person's opposing signed statement. No person can contest the fee at a hearing based on issues not previously raised in the initial recalculation request.

(k) Except for a request for hearing under subdivision (d) of section 481.5 of this Part, the department will deny any request for hearing if it concerns a matter that was not previously the subject of a conference under this section, unless the department has chosen not to schedule a conference.

(l) The provisions of 6 NYCRR, section 616.7 will govern requests for confidentiality of any document filed with the department in accordance with Parts 481 through 486 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 481.9