(8.2) (a) A rule adopted on or after September 1, 1988, shall be invalid unless adopted in substantial compliance with the provisions of this section. However, inadvertent failure to mail a notice of proposed rule-making to any person as required by subsection (3) of this section shall not invalidate a rule.

(b) An action to contest the validity of a rule on the grounds of its noncompliance with any provision of this section shall be commenced within thirty days after the effective date of the rule.

(9) Each agency shall make available to the public and shall deliver to anyone requesting it a copy of any notice of proposed rule-making proceeding in which action has not been completed. Upon request, such copy shall be certified. The agency may make a reasonable charge for supplying any such copy.

(10) No rule shall be relied upon or cited against any person unless, if adopted after May 1, 1959, it has been published and, whether adopted before or after said date, it has been made available to the public in accordance with this section.

(11) (a) There is hereby established the code of Colorado regulations for the publication of rules and regulations of agencies of the executive branch and the Colorado register for the publication of notices of rule-making, proposed rules, attorney general's opinions relating to such rules and regulations, and adopted rules. The code of Colorado regulations and the Colorado register shall be the sole official publications for such rules and regulations, notices of rule-making, proposed rules, and attorney general's opinions. The code of Colorado regulations and the Colorado register shall contain, where applicable, references to court opinions and recommendations of the legal services committee of the general assembly which relate to or affect such rules and regulations and references to any action of the general assembly relating to the extension, expiration, deletion, or rescission of such rules and regulations and may contain other items which, in the opinion of the editor, are relevant to such rules and regulations.

(b) The secretary of state shall cause to be published in electronic form and may cause to be published in printed form, at the least cost possible to the state, the code of Colorado regulations and the Colorado register no less often than once each calendar month and shall make all diligent effort to enter into a publication agreement to such effect for a period not to exceed five years, but such agreement may include a renewal provision for additional periods not to exceed five years each. The executive director of the department or his or her designee may work with the secretary of state to make the code of Colorado regulations and the Colorado register available to the public in an electronic format that is accessible and user-friendly. In the event of any discrepancy between the electronic and printed form of the code or the register, the printed form shall prevail unless it is conclusively shown, by reference to the rule-making filings made with the secretary of state pursuant to this section, that the printed form contains an error in publication.

(c) The secretary of state shall enter into any publication agreement provided for in this section with the person offering to publish and make available to the public the code and register at the lowest price, taking into consideration the qualities of the publications to be supplied, their conformity with the specifications, the purposes for which they are required, and the date of delivery. Each person offering to publish the code and register shall be entered on a record, and, after the person is chosen to publish the code and register, the record of each person offering to publish shall be open to public inspection. A bond furnished by a surety company authorized to do business in this state for the proper performance of each publication agreement may be required in the discretion of the secretary of state.

(d) (I) Each agency subject to the provisions of this section shall, on or before a date during the fiscal year beginning on July 1, 2003, specified by the secretary of state, file or verify that there is on file with the secretary of state a copy of each currently effective rule specified in subsection (1) of this section in print and in electronic form as specified by the secretary of state. Any rule in effect prior to such date that is not on file with the secretary of state on such date, shall not continue in effect on or after such date.

(II) Each rule adopted, together with the attorney general's opinion rendered in connection therewith, shall be filed pursuant to subsection (12) of this section within twenty days thereafter with the secretary of state for publication in the Colorado register. Upon written request of an agency, the secretary of state shall correct typographical and other nonsubstantive errors appearing in the rules as filed by such agency that occur after final adoption of the rules by the agency during the preparation of such rules for publication in order to conform the published rules with the adopted rules. Notices of rule-making proceedings pursuant to subsection (3) of this section shall also be filed with the secretary of state in sufficient time for publication pursuant to subsection (5) of this section in the Colorado register. Rules revised to conform with action taken by the general assembly shall be filed with the secretary of state for publication in the register and in the code. The legal services committee of the general assembly shall notify the secretary of state whenever a rule published in the code is rescinded or a portion thereof is deleted by the general assembly and whenever a rule or a portion thereof is allowed to expire in accordance with section 24-4-108 or with subparagraph (I) of paragraph (c) of subsection (8) of this section, and the secretary of state shall direct the removal from the code of material so deleted, rescinded, or allowed to expire.

(e) The secretary of state shall establish and maintain an accurate docket system for recording the time and date of the filing of each document, the agency filing the same, and the title or description of such document required to be filed for publication under the provisions of this section, which docket system shall be cross-indexed as to such time, date, agency, and title or description.

(f) Publication of the code of Colorado regulations shall be effected by making the same available for purchase by any person, public or private, at a reasonable price approved by the secretary of state.

(g) Publication of notices and other required information related to proposed and adopted rules shall be by electronic publication or by mailing the Colorado register to persons on the subscriber list maintained pursuant to paragraph (h) of this subsection (11). The date of publication of the Colorado register shall be the date that the last regular mailing and the electronic publication are completed. The Colorado register shall likewise be available for purchase by any person, public or private, at a reasonable price approved by the secretary of state.

(h) In order to facilitate the publication of the code of Colorado regulations and the Colorado register, the publishing agent shall maintain a current subscriber list for the code and register of all persons requesting to be placed thereon and having paid the approved purchase price, including those persons on any agency's mailing list who pay such purchase price. The subscriber list shall show for each subscriber whether the subscriber has purchased a print subscription, an electronic subscription, or both.

(i) (I) The code of Colorado regulations shall contain only those rules effective on the date of publication, subject to the provisions of paragraph (d) of this subsection (11) concerning rules filed with the secretary of state.

(II) The Colorado register shall contain only such notices, proposed rules, adopted rules, opinions, and other relevant information and materials as are filed pursuant to law with the secretary of state.

(III) If, for any reason, the code of Colorado regulations or the Colorado register is not published for three consecutive months or during a total of four calendar months during any twelve-month period, said agreement shall be void and all right, title, and interest to the information, copyright, mailing lists, other materials, and work product of the publishing agent shall vest, without compensation, in the state of Colorado. In such event, the secretary of state shall notify each agency of the termination of such agreement and shall publish or cause to be published the code of Colorado regulations and the Colorado register. Until the secretary of state has the facilities and funds and is fully prepared to publish each notice of rule-making and each rule as finally adopted and so notifies the agencies, each agency shall publish its own notices of rule-making and rules as finally adopted. Publication shall be by mailing a copy to each person on the agency's mailing list, which shall include the attorney general and every person who has requested to be placed thereon and who has paid any fee set by the agency for such purpose, such fee to approximate the cost of the mailing to such person, and by placing and keeping a copy on permanent file in the agency's office for inspection by any person during regular office hours.

(j) Repealed.

(k) Each agency promulgating or administering rules shall obtain the appropriate portion or portions of the code of Colorado regulations and the portion or portions of the Colorado register pertaining thereto and shall maintain the same in its office for its use and that of the public as a public record.

(12) All rules of any agency that have been submitted to the attorney general under the provisions of subsection (8) of this section and the opinion of the attorney general, when issued, shall be filed in the office of the secretary of state. The secretary of state shall require that such rules be filed in an electronic format that complies with any requirements established pursuant to section 24-37.5-106.

(12.5) (a) Subject to the provisions of this subsection (12.5), an agency may incorporate the following by reference in its rules without publishing the incorporated material in full:

(I) Federal rules, codes, or standards published in full in the federal register or the code of federal regulations;

(I.5) Federal rules, codes, or standards that have been properly incorporated by reference in the federal register as part of a duly promulgated final rule or in the code of federal regulations pursuant to federal legal requirements;

(II) (A) Published codes, standards, or guidelines of any nationally recognized scientific or technical association or organization.

(B) For the purposes of this subparagraph (II), "nationally recognized scientific or technical association or organization" means an association or organization that is regularly in the business of developing scientific or technical standards or guidelines, is recognized by those in the relevant professional community as having a high degree of expertise and competence in its field, and whose publications are widely distributed and easily available throughout the nation and the state of Colorado.

(b) (I) An agency may incorporate by reference the material set forth in paragraph (a) of this subsection (12.5) only if the issuing agency, organization, or association makes copies of the material available to the public. An agency may not incorporate any material by reference unless the material has been properly identified in the notice of proposed rule-making pursuant to paragraph (a) of subsection (3) of this section.

(II) A federal rule, code, or standard does not have the force of Colorado law unless the federal rule, code, or standard is adopted in a state rule in accordance with the provisions of this article and the federal rule, code, or standard is set forth in full in the state rule or is incorporated by reference as required by the provisions of this subsection (12.5).

(c) (I) The reference to any incorporated material shall identify the incorporated material by appropriate agency, organization, or association and by date, title, or citation. The reference shall also state that the rule does not include later amendments to or editions of the incorporated material.

(II) (A) If an agency proposes to incorporate any material by reference in a state rule, the agency shall allow public inspection of any noncopyrighted material and provide copies of the material to the public at cost upon request beginning no later than the date of publication of the notice of proposed rule-making. If any material to be incorporated by reference has been copyrighted, the agency shall upon request provide information about the publisher and the citation to the material.

(B) If any agency within the department of public health and environment proposes to incorporate material by reference in any regulation promulgated pursuant to article 7, 8, or 15 of title 25, C.R.S., and the version or edition of the material to be incorporated by reference has not previously been distributed to the state publications depository libraries, the agency shall provide a sufficient number of copies of the material to the state publications depository and distribution center no later than the date of the notice. The state librarian shall retain one copy of the material and shall provide one copy of the material to each state publications depository library pursuant to section 24-90-206 (2).

(C) Except as provided in sub-subparagraph (B) of this subparagraph (II), if any agency proposes to incorporate any material by reference in a regulation and the version or edition of the material to be incorporated has not previously been provided to the state publications depository and distribution center, the agency shall provide one copy of the material to the state publications depository and distribution center no later than the date of the notice. The state librarian shall retain the copy of the material and shall make the copy available for interlibrary loans.

(III) After any material is incorporated by reference in a state rule, the agency incorporating the material by reference shall maintain certified copies of the complete text of the material incorporated, which copies shall be available for public inspection during regular business hours. Certified copies of the material incorporated shall be provided at cost upon request.

(d) The agency shall include in any rule which incorporates material by reference the title and address of an employee of the agency who will provide information regarding how the incorporated material may be obtained or examined and a statement indicating that any material that has been incorporated by reference in the rule may be examined at any state publications depository library.

(13) Any agency conducting a hearing shall have authority on its own motion or upon the motion of any interested person for good cause shown to: Administer oaths and affirmations; sign and issue subpoenas; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for the filing of appropriate documents; take depositions or have depositions taken; issue appropriate orders which shall control the subsequent course of the proceedings; and take any other action authorized by agency rule consistent with this article. In the event more than one person engages in the conduct of a hearing, such persons shall designate one of their number to perform the functions of this subsection (13) and subsection (14) of this section as can best be performed by one person only, and thereafter such person only shall perform those functions which are assigned to him by the several persons conducting such hearing.

(14) Subpoenas shall be issued without discrimination between public and private parties by any agency or any member, the secretary or chief administrative officer thereof, or, with respect to any hearing for which a hearing officer or an administrative law judge has been appointed, the hearing officer or administrative law judge. A subpoena shall be served in the same manner as a subpoena issued by a district court. Upon failure of any witness to comply with such subpoena, the agency may petition any district court, setting forth that due notice has been given of the time and place of attendance of the witness and the service of the subpoena, in which event, the district court, after hearing evidence in support of or contrary to the petition, may enter an order as in other civil actions compelling the witness to attend and testify or produce books, records, or other evidence, under penalty of punishment for contempt in case of contumacious failure to comply with the order of the court. A witness shall be entitled to the fees and mileage provided for a witness in sections 13-33-102 and 13-33-103, C.R.S.

Source: L. 59: p. 159, § 2. CRS 53: § 3-16-2. C.R.S. 1963: §3-16-2. L. 67: p. 300, § 2. L. 69: p. 82, §§ 2, 3. L. 76: (1) and (8)(a) amended and (8)(d) added, p. 582, § 15, effective May 24. L. 77: (8)(d) amended, p. 1134, § 2, effective May 31; (13) and (14) added, p. 1144, § 1, effective June 3; (4) amended, p. 1136, § 1, effective June 19; (4) amended and (11) R&RE, p. 1138, §§ 1, 2, effective June 19; (8)(d) amended, p. 1141, § 1, effective (see editor's note). L. 78: (12) amended, p. 390, § 1, March 30. L. 79: (5) amended, p. 842, § 2, effective May 22; (8)(d) and (11)(d) amended, p. 849, § 1, effective May 25; (8)(c) R&RE and (8)(d) amended, p. 845, §§ 1, 2, effective June 29. L. 81: (9) and (11) amended, (11)(k) added, and (11)(j) repealed, pp. 1129, 1130, §§ 1, 2; (12.5) added, p. 1131, § 1, effective July 1; (12) and (13) amended, p. 1133, § 2, effective July 1. L. 82: (11)(a) and (11)(d) amended, p. 360, § 1, effective March 11. L. 84: (4) amended, p. 649, § 1, effective July 1. L. 87: (11)(k) amended, p. 915, § 1, effective July 1; (8)(c)(I) and (8)(d) amended, p. 919, § 2, effective July 3; (14) amended, p. 961, § 65, effective March 13. L. 88: (8)(d) amended, p. 311, § 19, effective May 23; (3), (6), and (8) amended and (4.5), (8.1), and (8.2) added, pp. 884, 886, 887, §§ 1, 2, 3, effective May 17. L. 89: (4.5)(f) added and (8.1)(b)(V) amended, pp. 1502, 1503, §§ 10, 11, effective July 1, 1990. L. 91: (1) amended, p. 807, § 3, effective June 5. L. 93: (3)(b), (6), (8.1)(c), (8.2)(b), and (11)(d) amended, p. 1325, § 2, effective June 6; (8)(d) amended, p. 2109, § 12, effective June 9; (8)(c)(I) amended, p. 496, § 1, effective July 1. L. 94: (1.5) added and (3)(a) and (12.5) amended, p. 2587, § 1, effective July 1. L. 95: (6) amended, p. 232, § 2, effective April 17. L. 98: (4)(a.5) added, p. 721, § 1, effective May 18. L. 2000: (1) amended, p. 1861, § 73, effective August 2. L. 2001: (8)(d) amended, p. 318, § 2, effective April 12; (4)(a.5) amended, p. 1076, § 5, effective August 8; (12) amended, p. 38, § 2, effective August 8. L. 2002: (3)(b), (9), (11)(b), (11)(d), (11)(f), (11)(g), (11)(h), (11)(i), (11)(k), and (12) amended, p. 436, § 2, effective May 14. L. 2003: (11)(b) and (11)(d)(I) amended, p. 2048, §1, effective May 22; (2.5) added and (6), (8.1)(b)(V), and (11)(b) amended, p. 2370, § 3, effective August 6. L. 2005: (12) amended, p. 768, § 36, effective June 1. L. 2006: IP(2.5)(a) and (2.5)(f)(I) amended, p. 202, § 1, effective March 31; (12) amended, p. 1735, § 20, effective June 6. L. 2007: (12) amended, p. 910, § 2, effective May 17. L. 2009: (8)(c)(I) amended, (HB 09-1293), ch. 152, p. 651, § 9, effective July 1.

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).