Editor's note: (1) House Bill 77-1646, which amended subsection (8)(d), was delivered to the governor on June 20, 1977. The general assembly adjourned sine die on June 22, 1977. The governor disapproved House Bill 77-1646 on July 15, 1977, but the bill was not filed with the secretary of state until July 27, 1977, and the governor's letter stating objections to the bill was not filed with the secretary of state until August 2, 1977. Because House Bill 77-1646 and the governor's objections to it were not filed with the secretary of state within thirty days after adjournment of the general assembly, House Bill 77-1646 became a law pursuant to the provisions of § 11 of article IV of the Colorado Constitution.

(2) Amendments to subsection (8)(d) by House Bill 79-1393 and House Bill 79-1063 were harmonized.

(3) Amendments to subsection (11)(b) by Senate Bill 03-121 and House Bill 03-1350 were harmonized.

Cross references: For the general authority of department heads to adopt rules and regulations, see § 24-2-105.

Am. Jur.2d. See 2 Am. Jur.2d, Administrative Law, §§ 136, 169-172, 190-192, 221-229.

C.J.S. See 73 C.J.S., Public Administrative Law and Procedure, §§ 161-181.

Law reviews. For article, "Discovery and Judicial Review in State Administrative Practice", see 10 Colo. Law. 2490 (1981). For article, "Administrative Law", which discusses a recent Tenth Circuit decision dealing with rule-making, see 61 Den. L.J. 110 (1984). For article, "Administrative Law", which discusses recent Tenth Circuit decisions dealing with rulemaking, see 62 Den. U. L. Rev. 15 (1985). For article, "General Principles of the Colorado Administrative Procedure Act", see 16 Colo. Law. 1983 (1987). For article, "Hearsay Evidence and the Residuum Rule in Colorado", see 17 Colo. Law. 651 (1988). For article, "Administrative Law", which discusses a recent Tenth Circuit decision dealing with an agency's interpretation of its rules, see 65 Den. U. L. Rev. 366 (1988). For article, "Legislative and Judicial Oversight of Rulemaking", see 18 Colo. Law. 246 (1989). For article, "Understanding Administrative Fact-Finding", see 20 Colo. Law. 1607 (1991). For article, "Legislative Sunset of Administrative Rules", see 21 Colo. Law. 2191 (1992). For article, "Guidelines for Negotiated Rulemaking", see 25 Colo. Law. 21 (January 1996).

Section constitutional. Subsection (10) does not violate § 21 of art. VI, Colo. Const. People v. Bobian, 626 P.2d 1132 (Colo. 1981).

The basic purpose of subsection (10) is public policy rather than simply a legislative attempt to regulate the day-to-day procedural operation of the courts. People v. Bobian, 626 P.2d 1132 (Colo. 1981).

Section is not applicable to board of regents of university of Colorado. Sigma Chi Fraternity v. Regents of Univ. of Colo., 258 F. Supp. 515 (D. Colo. 1966).

Section is not applicable to suspension of medical license. Section 24-4-104 (4), dealing with the procedure for the issuance, suspension, revocation, or renewal of licenses, is the authority for the state board of medical examiners to summarily suspend a license to practice medicine pending a full hearing; this section and § 12-36-101 et seq., dealing with medical practice, do not apply. Bd. of Medical Exam'rs v. District Court, 191 Colo. 158, 551 P.2d 194 (1976).

Apparent purpose of the 1977 amendment was to formalize, to a limited degree, the agency rule-making process by requiring a brief explanation of the reasoning process underlying an administrative regulation, and by requiring that the regulation be based upon and tied to the administrative record. Citizens for Free Enter. v. Dept. of Rev., 649 P.2d 1054 (Colo. 1982).

Rationale for requirement of statement of basis and purpose. The statement of basis and purpose assures that the administratively perceived necessity for the rule will be explicated, and serves to provide a reference point against which the validity of the rule can be measured. It removes the review process from the realm of speculation and provides a context within which meaningful judicial review can occur. Citizens for Free Enter. v. Dept. of Rev., 649 P.2d 1054 (Colo. 1982).

Where agency, in rule-making, fails to maintain an appropriate record of the public hearing because of a malfunctioning tape recorder, improperly compiles the rule-making record by introducing documents from outside of the rule-making procedures, and fails to maintain the rule-making record by failing to include and maintain all written submissions and comments received by the agency prior to the hearing, the agency has failed to substantially comply with the requirements of the Administrative Procedure Act. Studor v. Examining Bd. of Plumbers, 929 P.2d 46 (Colo. App. 1996).

The reason for the prehearing statement of basis and purpose under subsection (2.5)(a) is to provide public notice of what the agency is considering. The reason for requiring that rules incorporate by reference a written concise general statement of their basis, specific statutory authority, and purpose under subsection (4)(c) is to assist in appellate review. Brighton Pharmacy, Inc. v. Colo. State Pharmacy Bd., 160 P.3d 412 (Colo. App. 2007).

Agency substantially complied with the requirement of state Administrative Procedure Act (APA) of providing a statement of basis and purpose. Here, regulation at issue was not based on findings of fact obtained from evidence presented at the hearing or otherwise. Instead, it was based almost entirely on policy considerations. In addition, the purpose of the regulation is self-explanatory. Brighton Pharmacy, Inc. v. Colo. State Pharmacy Bd., 160 P.3d 412 (Colo. App. 2007).

State pharmacy board (Board) substantially complied with APA requirements of maintaining an adequate and appropriate record of the rulemaking hearing proceeding. Maintaining an adequate record provides a rationale and support for agency decisions, allows for public inspection of the agency's actions, and establishes a record that an appellate court may use to evaluate the basis of the agency's conclusions. Here, the Board substantially complied with APA hearing procedure requirements where (1) although the tape recording of the hearing contains inaudible and unreconstructed portions, the substance of and core testimony at the hearing appears to be intact and sufficient for public inspection and appellate review, (2) written comments were included in the record that address many of the items discussed at the hearing, (3) comments and questions made by Board members during the testimony are sufficient to convey the Board 's thought processes and reasoning, and (4) the record sufficiently indicates that a majority of Board members voted in favor of the rule. Brighton Pharmacy, Inc. v. Colo. State Pharmacy Bd., 160 P.3d 412 (Colo. App. 2007).

State pharmacy board (Board) did not exceed its statutory authority in promulgating rule prohibiting pharmacists from dispensing prescription drugs resulting from internet-based questionnaires, internet-based consultation, or telephonic consultation without a valid preexisting patient-practitioner relationship. Court rejects appellants' claims that a determination of whether a valid preexisting patient-practitioner relationship (1) necessarily involves knowledge of the Medical Practice Act and the rules promulgated by the Colorado state board of medical examiners (BME), (2) is beyond the expertise of individual pharmacists and the Board, and (3) improperly injects the Board into areas that are properly regulated by the BME. Brighton Pharmacy, Inc. v. Colo. State Pharmacy Bd., 160 P.3d 412 (Colo. App. 2007).

Fiscal impact determination not based on record before agency. Subsection (8)(d) does not require that the fiscal impact determination be based upon or supported by the record before the administrative agency. Rather, the administrative agency should conduct such investigations and research as are reasonably necessary to arrive at an estimate of fiscal impact or to determine that such impact cannot reasonably or reliably be quantified. Citizens for Free Enter. v. Dept. of Rev., 649 P.2d 1054 (Colo. 1982) (decided prior to 1988 amendment deleting fiscal impact statement requirement).

Fiscal impact statement requirement relates to the substance of new or amended regulations and not to their form. If the amendment is one of substance which has fiscal implications, then the fiscal impact statement is required. Conversely, if the change is not substantive and does not affect the fiscal impact of the regulation as it is written, then no fiscal impact statement is required. Dept. of Natural Resources v. Clark Gen. Store, Inc., 658 P.2d 1385 (Colo. App. 1983) (decided prior to 1988 amendment deleting fiscal impact statement requirement).

Simple renumbering of preexisting regulation does not constitute an amendment such as would require a fiscal impact statement under subsection (8)(d). Dept. of Natural Resources v. Clark Gen. Store, Inc., 658 P.2d 1385 (Colo. App. 1983) (decided prior to 1988 amendment deleting fiscal impact statement requirement).

Review of fiscal impact statements is limited. The role of the court in reviewing the sufficiency of fiscal impact statements is limited. Citizens for Free Enter. v. Dept. of Rev., 649 P.2d 1054 (Colo. 1982) (decided prior to 1988 amendment deleting fiscal impact statement requirement).

Only where the statement of fiscal impact is clearly inadequate may the court intervene. Citizens for Free Enter. v. Dept. of Rev., 649 P.2d 1054 (Colo. 1982) (decided prior to 1988 amendment deleting fiscal impact statement requirement).

Lack of bona fide emergency. Rule not invalid for lack of emergency where challenge was merely procedural and where notice and an opportunity to be heard were given. Colo. Health Care Ass'n v. Dept. of Soc. Servs., 598 F. Supp. 1400 (D. Colo. 1984).

Issue of validity of emergency regulations not considered when the new regulations, if invalidly promulgated, would have left identical prior regulations in effect. Nat. Advertising v. Dept. of Highways, 718 P.2d 1038 (Colo. 1986).

Rule-making quasi-legislative in character. Rule-making conducted in accordance with this section is quasi-legislative, not quasi-judicial, in character. Collopy v. Wildlife Comm'n, 625 P.2d 994 (Colo. 1981).

An administrative regulation promulgated pursuant to this section is a quasi-legislative action subject to review by a declaratory judgment. Clasby v. Klapper, 636 P.2d 682 (Colo. 1981).

Legislative delegation of rule-making and regulatory authority to an administrative agency must provide both sufficient standards for rational and consistent rule-making and adequate procedural safeguards for effective judicial review of administrative action. Orsinger Outdoor Advertising, Inc. v. Dept. of Hwys., 752 P.2d 55 (Colo. 1988); Partridge v. State, 895 P.2d 1183 (Colo. App. 1995).

The general assembly need not adopt a specific formula to guide agency rule-making if the agency can find general guidance, through the legislative intent, in the purposes and overall scheme of an act. Ettelman v. State Bd. of Accountancy, 849 P.2d 795 (Colo. App. 1992).

While the construction of a statute by an administrative agency charged with its enforcement should be given deference by the courts, the courts have a duty to invalidate administrative regulations which conflict with the design of a statute because they are in excess of the administrative authority granted. Ettelman v. State Bd. of Accountancy, 849 P.2d 795 (Colo. App. 1992).

Board's rules were not abolished by legislation abolishing existing board and immediately creating a newly constituted one, nor was board required to re-enact, ratify, or promulgate new rules, since annual legislation by the general assembly specifically postponing the expiration of the board's rules effectively postponed the rules of the "old" board and continued their application under the "new" board. 1st Am. Sav. Bank v. Boulder County, 888 P.2d 360 (Colo. App. 1994).

Secretary of state was not required to promulgate rules under the APA in order to implement the reporting requirement for games of chance suppliers and manufacturers under § 12-9-107.5. Bingo Games Supply Co., Inc. v. Meyer, 895 P.2d 1125 (Colo. App. 1995).

Counties not "persons" or "parties". There is nothing in the context of this section that includes counties as "persons" or "parties" entitled as of right to be admitted to agency hearings. Bd. of County Comm'rs v. State Bd. of Soc. Servs., 186 Colo. 435, 528 P.2d 244 (1974).

Department proposing a regulation has no affirmative duty to offer supporting evidence. Colo. Auto & Truck Wreckers Ass'n v. Dept. of Rev., 618 P.2d 646 (Colo. 1980).

Study or findings are not required to support rules based primarily on policy considerations if reasoning process leading to rules is defensible. Colo. Health Care Ass'n v. Dept. of Soc. Servs., 598 F. Supp. 1400 (D. Colo. 1984).

Racing commission was not precluded from making financial irresponsibility grounds for discipline, even though such grounds were not enumerated in § 12-60-507, since the rule was in the interests of the public and reasonable and was fully consistent with the commission's authority to promulgate rules. Partridge v. State, 895 P.2d 1183 (Colo. App. 1995).

Submissions by interested persons not controlling. Although subsection (4) provides that the agency "shall consider all submissions", it does not provide that such submissions shall be controlling, even when unrebutted. Colo. Auto & Truck Wreckers Ass'n v. Dept. of Rev., 618 P.2d 646 (Colo. 1980).

Definition of "rule". The numerical point system formulated by a peer review organization was not a rule but a general statement of policy which did not establish a binding norm nor finally determine issues or rights. Therefore no publication of the point system was required. Meyer v. State Dept. of Soc. Servs., 758 P.2d 192 (Colo. App. 1988).

Division of labor's requirement that self-insured employers use payroll statement to calculate the tax owed amounted to a "rule" as defined in subsection (15) of § 24-4-102. Jefferson Sch. Dist. R-1 v. Division of Labor, 791 P.2d 1217 (Colo. App. 1990).

Promulgated and effective rule deemed "final" and subject to review. Once a commission's rule or regulation has been promulgated and is in effect, the agency action is "final" as to that particular regulation and subject to review under this article. CF&I Steel Corp. v. Colo. Air Pollution Control Comm'n, 199 Colo. 270, 610 P.2d 85 (1980).

Properly filed and indexed rules introduced in evidence. In effect, the general assembly stated in this section that, in order to have a rule introduced in evidence, the filing authority shall index and number the set of rules involved, shall keep amendments and repealed rules in a separate permanent file, and shall cross-index with up-to-date rules any amended or repealed rules. People v. Williams, 197 Colo. 559, 596 P.2d 745 (1979).

When rule may be introduced into evidence. An administrative rule which does not satisfy the public notice requirements of this section may not be introduced as evidence in criminal proceedings. People v. More, 668 P.2d 968 (Colo. App. 1983).

A party to judicial proceedings has the right to require an adverse party seeking to introduce an administrative rule into evidence to establish compliance with the applicable provisions of this section. People v. More, 668 P.2d 968 (Colo. App. 1983).

Statute governing admission of administrative rules and regulations into evidence against an accused in a criminal trial requires only a showing of proper publication and public availability of the rules. No showing need be made that there has been compliance with the provisions of the statute governing other aspects of issuance or promulgation of the rules. People v. Gallegos, 692 P.2d 1074 (Colo. 1984) (limiting People v. More cited in the previous paragraphs).

Standard of review specified in subsection (6) correctly applied where termination was reversed without an explicit finding that agency action was arbitrary, capricious, or contrary to rule or law. Kinchen v. Dept. of Institutions, 867 P.2d 8 (Colo. App. 1993).

Conviction based on regulation not available to public is reversed. Where, in order to show that defendant received aid to the blind benefits to which he was not entitled, the department of social services had to both cite and rely on a regulation which had not been made available to the public in violation of this section, the defendant's conviction for welfare fraud had to be reversed. People v. Bobian, 626 P.2d 1132 (Colo. 1981).

Administrative law judge (ALJ) violated subsection (10) where the numerical point system formulated by the department of social services was utilized by the ALJ as the sole criterion upon which to determine petitioners' continuing eligibility for benefits but had never been made the subject of a formally adopted rule or regulation nor had claimant been given proper notice of its preeminent significance in determining benefit eligibility. Weaver v. Dept. of Soc. Servs., 791 P.2d 1230 (Colo. App. 1990).

The use of unpublished criteria in a scoring system used to evaluate the plaintiff's eligibility for home- and community-based services was not in violation of the Administrative Procedure Act because the scoring system serves only to facilitate the evaluation process for certain applicants and is not the final factual determination of eligibility. Morgan v. Colo. Dept. of Health Care Policy & Fin., 56 P.3d 1136 (Colo. App. 2002).

Agency rule-making conducted in accordance with this section is quasi-legislative, not quasi-judicial, in character. Colo. Ground Water Comm'n v. Eagle Peak Farms, 919 P.2d 212 (Colo. 1996).

Rules that are interpretive in nature fall within the express exception to the notice and hearing requirements of this section. Regular Rt. Com. Carrier Conf. v. Pub. Utils. Comm'n, 761 P.2d 737 (Colo. 1988).

Agency's rule, which provides minimum guidelines as to how the discovery process will be conducted with respect to that agency, is an interpretive rule and falls within the express exception to the notice and hearing requirements of this section. Colo. Motor Vehicle v. Northglenn, 972 P.2d 707 (Colo. App. 1998).

Emergency rule-making was within authority of department of social services and in accordance with the Administrative Procedure Act and the Medicaid Act. Health Care of Colo. v. Dept. of Soc. Servs., 842 F.2d 1158 (10th Cir. 1988).

Fiscal impact statement is not required to contain a description of the types of persons the rule will injure. The paragraph of the rule only requires a description of those types of persons or groups who will bear the costs of the rule and, for purposes of this paragraph, costs means fiscal costs. Urbish v. Lamm, 761 P.2d 756 (Colo. 1988) (decided under law in effect prior to 1988 amendment deleting fiscal impact statement requirement).

Rules published in the code of Colorado regulations are a fit subject for judicial notice. Westfall v. Town of Hugo, 851 P.2d 299 (Colo. App. 1993).

Where an agency's interpretation of law established agency policy and procedure, compliance with the Administrative Procedure Act (APA) was required and, where the APA requirements were not met, the rule was not enforceable. Jefferson Sch. Dist. R-1 v. Division of Labor, 791 P.2d 1217 (Colo. App. 1990).

It was permissible for the trial court to consider the commission's deliberations in the rule-making proceeding, in conjunction with the rest of the record, in conducting the court's review. The transcripts of the commission's deliberations are analogous to legislative history concerning a statute. Bd. of County Comm'rs v. Water Quality Control Comm'n, 809 P.2d 1107 (Colo. App. 1991).

A regulation may not modify or contravene an existing statute, and any regulation that is inconsistent with or contrary to statute is void. Ettelman v. State Bd. of Accountancy, 849 P.2d 795 (Colo. App. 1992).

A regulation that states that permits issued pursuant to it shall be binding with respect to "any conflicting local governmental permit or land use approval process" is overly broad and void where it conflicts with law providing that oil and gas rules preempt county regulations only when the operational effect of the county regulations conflicts with the application of the state oil and gas statute or state regulations. Bd. of County Comm'rs v. Colo. Oil & Gas Conservation Comm'n, 81 P.3d 1119 (Colo. App. 2003).

District court did not abuse its discretion by entering preliminary injunction against secretary of state enjoining implementation of administrative rule. Proposed rule would force labor and other covered organizations to get written permission before using an individual's dues or contributions to fund political campaigns. Plaintiffs demonstrated reasonable probability of success on the merits in challenging secretary's authority to enact proposed rule. Secretary's "definition" of term "member" in proposed rule is much more than an effort to define term. It can be read effectively to add, modify, and conflict with constitutional provision by imposing new condition not found in text of article XXVIII. Secretary's stated purpose in enacting proposed rule not furthered by "definition" contained in proposed rule. Proposed rule does not further secretary's stated goal of achieving transparency of contributions. Finally, timing and scope of secretary's definition raise constitutional issues with respect to plaintiff's associational rights. Sanger v. Dennis, 148 P.3d 404 (Colo. App. 2006).

Applied in Union P. R. R. v. Heckers, 181 Colo. 374, 509 P.2d 1255 (1973); Chroma Corp. v. County of Adams, 36 Colo. App. 345, 543 P.2d 83 (1975); United Buying Serv., Inc. v. State Dept. of Rev., 37 Colo. App. 465, 548 P.2d 1286 (1976); Van Pelt v. State Bd. for Community Colleges & Occupational Educ., 195 Colo. 316, 577 P.2d 765 (1978); Colorado-Ute Elec. Ass'n v. Air Pollution Control Comm'n, 41 Colo. App. 393, 591 P.2d 1323 (1978); A & A Auto Wrecking, Inc. v. Dept. of Rev., 43 Colo. App. 85, 602 P.2d 10 (1979); Schneider v. Indus. Comm'n, 624 P.2d 371 (Colo. App. 1981); Colo. Water Quality Control Comm'n v. Town of Frederick, 641 P.2d 958 (Colo. 1982); Geriatrics, Inc. v. Colo. State Dept. of Health, 650 P.2d 1288 (Colo. App. 1982), aff'd in part and rev'd in part on other grounds, 699 P.2d 952 (Colo. 1985).