Current through Register Vol. 47, No. 17, September 10, 2024
The purpose of this Rule is to clarify procedures for the
handling of requests for declaratory orders filed pursuant to the Colorado
Administrative Procedures Act at section
24-4-105(11),
C.R.S.
A. Any person or entity may
petition the Director for a declaratory order to terminate controversies or
remove uncertainties as to the applicability of any statutory provision or of
any rule or order of the Director.
B. The Director will determine, at her or his
discretion and without notice to petitioner, whether to rule upon any such
petition. If the Director determines that she or he will not rule upon such a
petition, the Director shall promptly notify the petitioner of her or his
action and state the reasons for such decision.
C. In determining whether to rule upon a
petition filed pursuant to this rule, the Director will consider the following
matters, among others:
1. Whether a ruling on
the petition will terminate a controversy or remove uncertainties as to the
applicability to petitioner of any statutory provisions or rule or order of the
Director.
2. Whether the petition
involves any subject, question or issue that is the subject of a formal or
informal matter or investigation currently pending before the Director or a
court involving one or more petitioners.
3. Whether the petition involves any subject,
question or issue that is the subject of a formal or informal matter or
investigation currently pending before the Director or a court but not
involving any petitioner.
4.
Whether the petition seeks a ruling on a moot or hypothetical question or will
result in an advisory ruling or opinion.
5. Whether the petitioner has some other
adequate legal remedy, other than an action for declaratory relief pursuant to
CRCP 57, which will terminate the controversy or remove any uncertainty as to
the applicability to the petitioner of the statute, rule or order in
question.
D. Any
petition filed pursuant to this Rule shall set forth the following:
1. The name and address of the petitioner and
whether the petitioner is licensed pursuant to Title 12, Article 230.
2. The statute, rule or order to which the
petition relates.
3. A concise
statement of all of the facts necessary to show the nature of the controversy
or uncertainty and the manner in which the statute, rule, or order in question
applies or potentially applies to the petitioner.
E. If the Director determines that she or he
will rule on the petition, the following procedures shall apply:
1. The Director may rule upon the petition
based solely upon the facts presented in the petition. In such a case:
a. Any ruling of the Director will apply only
to the extent of the facts presented in the petition and any amendment to the
petition.
b. The Director may order
the petitioner to file a written brief, memorandum or statement of
position.
c. The Director may set
the petition, upon due notice to petitioner, for a non-evidentiary
hearing.
d. The Director may
dispose of the petition on the sole basis of the matters set forth in the
petition.
e. The Director may
request the petitioner to submit additional facts in writing. In such event,
such additional facts will be considered as an amendment to the
petition.
f. The Director may take
administrative notice of facts pursuant to the Administrative Procedure Act at
section 24-4-105(8),
C.R.S., and may utilize her or his experience, technical competence, and
specialized knowledge in the disposition of the petition.
2. If the Director rules upon the petition
without a hearing, she or he shall promptly notify the petitioner of her
decision.
3. The Director may, at
her or his discretion, set the petition for hearing, upon due notice to
petitioner, for the purpose of obtaining additional facts or information or to
determine the truth of any facts set forth in the petition or to hear oral
argument on the petition. The notice to the petitioner shall set forth, to the
extent known, the factual or other matters into which the Director intends to
inquire. For the purpose of such a hearing, to the extent necessary, the
petitioner shall have the burden of proving all the facts stated in the
petition; all of the facts necessary to show the nature of the controversy or
uncertainty; and the manner in which the statute, rule, or order in question
applies or potentially applies to the petitioner and any other facts the
petitioner desires the Director to consider.
F. The parties to any proceeding pursuant to
this rule shall be the Director and the petitioner. Any other person may seek
leave of the Director to intervene in such a proceeding, and leave to intervene
will be granted at the sole discretion of the Director. A petition to intervene
shall set forth the same matters as are required by section (D) of this Rule.
Any reference to a "petitioner" in this Rule also refers to any person who has
been granted leave to intervene by the Director.
G. Any declaratory order or other order
disposing of a petition pursuant to this rule shall constitute an agency action
subject to judicial review pursuant to the Colorado Administrative Procedures
Act at section
24-4-106, C.R.S.
