New York Codes, Rules and Regulations › Title 19 - DEPARTMENT OF STATE › Chapter IX - SUBMISSION OF NOTICES AND FILINGS IN RELATION TO AGENCY RULE MAKING ACTION › Part 264 - Declaratory Rulings And Requests To Pass On Validity Of Rules › Section 264.1 - Nature of remedies

Current through Register Vol. 46, No. 28, July 10, 2024
(a) A
				petition for declaratory ruling and request to pass on validity of rules as
				provided in this Part and in sections 204 and 205 of the State Administrative
				Procedure Act (SAPA) are not the exclusive procedures to secure the relief
				sought. Both the application of rules and statutes and the validity of rules
				may be raised in adjudicatory proceedings conducted by this agency or in other
				judicial proceedings. If no such proceedings from which a judicial review lies
				are pending however, a proceeding under article 78 of the Civil Practice Law
				and Rules (CPLR) or an action for declaratory judgement may not be maintained
				with respect to a rule unless a petition for declaratory ruling or a request to
				pass on the validity of a rule has first been filed. In both instances, if the
				Secretary fails to act within 30 days, the petition or request is deemed denied
				and judicial proceedings may be commenced.
(b) Generally, a declaratory ruling is a
				binding advisory opinion as to the applicability of a rule or statute to a
				particular state of facts, the purpose of which is to give guidance before
				rather than after the conduct in question occurs. Most often, it addresses a
				set of operable facts which the petitioner poses as a future plan of action and
				can give binding assurance to the petitioner that certain consequences will
				flow from future conduct unless the declaratory ruling is set aside or modified
				by a court of competent jurisdiction or the law is changed by act of the
				Legislature. A declaratory ruling, however, will not extend or limit a rule or
				statute beyond that which might be reasonably educed from the language of the
				rule or the statute in question. Where a declaratory ruling would be, in
				effect, a regulation then regulations will be published and properly
				promulgated.
(c) A request to pass
				on the validity of a rule is a necessary step under the State Administrative
				Procedure Act, section 205 before the rule may be judicially challenged under
				article 78 of the Civil Practice Law and Rules or in an action for declaratory
				judgement. The grounds upon which the validity of a rule may be challenged are
				that it violates constitutional provisions, is without statutory authority or
				has been adopted without substantial compliance with required rule making
				procedure. Under State Administrative Procedure Act, section 202(8), this last
				ground of invalidity, (that of substantial noncompliance with required rule
				making procedure) a rule must be judicially challenged within four months of
				the effective date of the rule. Because the Secretary is bound by the rules and
				regulations of the department, the Secretary can only determine that the
				challenge itself is meritorious and proceed to give notice of proposed agency
				action to amend or repeal the rule in question or, if the determination is that
				the challenge is not meritorious, deny the request. After a notice has been
				published in the State Register, the Secretary may receive comment on the
				proposed agency action and thereafter may or may not take final agency action
				on the amendment or repeal. Even if the Secretary initially agrees that the
				request is meritorious and commences the rule making process to amend or repeal
				the rule, this is not final action by the Secretary. The person making the
				request is not precluded from commencing judicial proceedings as a protective
				measure. If the amendment or repeal of the rule becomes final, the judicial
				proceeding would become moot and would be discontinued.