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

(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.