New York Codes, Rules and Regulations (NYCRR)
Title 19 Part 264
Department of State
Browse the NYCRR by title, part, and section.
3 sections
Title 19 is open to everyone.
Ask LawEngine about the NYCRR →Create a free account →All 23 titles. No credit card required.Source version current through Apr 15, 2022
All 3 displayed sections in this Part carry the same compiled date. Status and warnings stay on each section.
19 NYCRR 264.1 - Nature of remedies
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Department of State
- Section status
- Section source receipt
- Source version current through
- Apr 15, 2022
(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.
19 NYCRR 264.2 - Declaratory rulings
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Department of State
- Section status
- Section source receipt
- Source version current through
- Apr 15, 2022
(a)On the petition of any person, submitted in accordance with this section, the Secretary of State may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it.
(b)The petition shall be submitted to the general counsel of the Department of State either personally or by first class mail addressed to General Counsel, Department of State, One Commerce Plaza, 99 Washington Avenue, Suite 1120, Albany, NY 12231-0001.
(c)The petition shall be typed legibly on plain, white bond, standard weight paper, 8½ × 11 inches in size.
(d)The petition shall be captioned, entitled and commenced as follows:
STATE OF NEW YORK
DEPARTMENT OF STATE
In the Matter of the Petition of:
(Name of Petitioner)
For a Declaratory Ruling.
State of New York )
) SS.:
County of )
I, (Name of Petitioner), being duly sworn, deposes and says:
1.That your petitioner is
(Here identify and show the interest of petitioner.)
(e)Thereafter, the petition shall:
(1)state with particularity the pertinent facts bearing on the matter; proposed action may be stated provided that it is demonstrated that it is the good faith intent of the petitioner to bring about such state of facts or that he verily believes that such prospective facts will be realized;
(2)set forth the rule or statute which is the subject of the petition;
(3)state the relief requested; and
(4)the petitioner shall affirm that the statements of facts made therein are true under penalties of perjury.
(f)The petition should contain the name, address and telephone number of the attorney, if any, of the petitioner.
(g)The petitioner may accompany the petition with written argument why the declaratory relief should be granted, citing authority therefor where appropriate.
(h)The agency will be bound by the conclusions stated in any declaratory ruling unless changed to be effective prospectively, provided the facts are as stated in the declaratory ruling, or the ruling is altered or set aside by a court of competent jurisdiction or duly enacted legislation.
(i)All petitions submitted in accordance with this Part will be reviewed by the Secretary of State and within 30 days of filing, either a ruling will issue or the petitioner will be notified that no ruling will issue unless petition is determined to be incomplete or another date certain for issuance of a ruling is otherwise agreed between petitioner and agency. In the event that the Secretary of State fails to act on a petition within 30 days of its filing, the petitioner will be deemed to have been denied.
(j)No declaratory ruling will be issued upon an incomplete petition or upon a set of facts which have been the subject of an administrative action for which the petitioner has had or had a right to an adjudicatory proceeding, nor will a declaratory ruling issue which extends or limits a rule or statute beyond that which may be reasonably educed from the language of the rule or statute.
(k)All declaratory rulings shall be available to the public at the principal office of the Secretary of State located at 41 State Street, Albany, NY 12231.
19 NYCRR 264.3 - Requests to pass on validity of rules
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Department of State
- Section status
- Section source receipt
- Source version current through
- Apr 15, 2022
(a)Pursuant to section 205 of the State Administrative Procedure Act, any person may request the Secretary of State to pass on the validity of rules of the Department of State by filing a request to pass on the validity of rules in accordance with this section.
(b)The request shall be submitted to the general counsel of the Department of State either personally or by first class mail addressed to General Counsel, Department of State, One Commerce Plaza, 99 Washington Avenue, Suite 1120, Albany, NY 12231-0001.
(c)The petition shall be typed legibly on plain, white bond, standard weight paper, 8½ × 11 inches in size.
(d)The petition shall be captioned and entitled as follows:
STATE OF NEW YORK DEPARTMENT OF STATE
__________________
In the Matter of the Request to Pass on Validity of Rules by:
(Name of Person making request)
Pursuant to SAPA § 205.
__________________
(e)The body of the petition shall, in conveniently numbered paragraphs:
(1)identify the person making the request and show the interest in the rule to that person;
(2)identify the rule sought to be invalidated;
(3)as concisely as possible, present the legal argument with all appropriate citations of authority as to why the rule may be constitutionally invalid, lacks statutory authority or has been promulgated without substantial compliance with required rule making procedures; and
(4)state the precise relief requested.
(f)The petition should be attached to a backer or cover entitled as above, which backer or cover should contain the name, address and telephone number of the attorney.
(g)The Secretary will review all requests filed and determine whether the request to determine validity of a rule has merit within 30 days of filing, notifying the person making the request of such determination within that time. If no such determination has been made within 30 days of filing, the request will be deemed denied.
(h)The Secretary has discretion to file a notice of proposed agency action pursuant to the State Administrative Procedure Act, section 202 to amend or repeal the rule or to comply with proper rule making procedure, and notify the person making the request of this action. Thereafter, after opportunity for comment on the proposed action, the Secretary will take such final action as is deemed proper and lawful and notify the person making the request of such action. If the Secretary determine that the request is without merit, the Secretary will notify the person making the request of that determination.