Current through Register Vol. 47, No. 17, September 10, 2024
7.1. Petition
for a Declaratory Order
Pursuant to section
24-5-105(11),
C.R.S., a Petitioner may petition the Board for a declaratory order to
terminate controversies or to remove uncertainties as to the applicability to
any statutory provision, rule, or order of the Board as it would apply to the
Petitioner.
7.2. Parties to
the Proceeding
The parties to any proceeding as set forth in Chapter 7 of
these Rules will be the Board and the Petitioner. Any other person may seek
leave of the Board to intervene in such a proceeding. Permission to intervene
will be granted at the sole discretion of the Board. A petition to intervene
will set forth the same matters as set forth in Rule 7.3.
7.3. Petition Contents
Any petition filed as set forth in Chapter 7 of these Rules
will state the following:
A. The name
and address of the Petitioner;
B.
The statute, rule, or order to which the petition relates;
C. A concise statement of all the facts and
law 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
D.
The Petitioner may submit a concise statement of the declaratory
order.
7.4. Board's
Considerations Whether or Not to Rule:
The Board may determine, in its sole discretion and without
prior notice to the Petitioner, whether or not to rule upon a petition. In
determining whether or not to rule upon a petition filed as set forth in
Chapter 7 of these Rules, the Board may consider the following matters, among
others:
A. Whether a ruling on the
petition will terminate a controversy or remove uncertainties as to the
applicability to the Petitioner of any statutory provision, rule, or order of
the Board.
B. Whether the petition
involves any subject, question, or issue which is the subject of a formal or
informal matter or investigation currently pending before the Board or a court
involving one or more of the Petitioners.
C. Whether the petition involves any subject,
question, or issue which is the subject of a formal or informal matter or
investigation currently pending before the Board or a court not involving the
Petitioner.
D. Whether the petition
seeks a ruling on a hypothetical question.
E. Whether the Petitioner has some other
adequate legal remedy, other than an action for declaratory order which will
terminate the controversy or remove any uncertainty as to the applicability to
the Petitioner of the statute, rule, or order in question.
7.5. Board Determines Not to Rule
If the Board determines it will not rule on a petition, the
Board will issue its written decision disposing of the petition, stating the
reasons for declining to rule upon the petition. A copy of the decision will be
provided to the Petitioner. A decision not to rule on a petition for a
declaratory order is not final agency action subject to judicial review
7.6. Board Determines to Rule
If the Board determines that it will rule on the
petition:
A. The Board may order the
Petitioner to file an additional written brief, memorandum, statement of
position, or request the Petitioner to submit additional facts or arguments in
writing.
B. The Board may take
administrative notice of facts pursuant to the Administrative Procedure Act,
section 24-4-105(8),
C.R.S., and may utilize its experience, technical competence, and specialized
knowledge when ruling on the petition.
C. The Board may set the petition, upon due
notice to the Petitioner, for a non-evidentiary hearing.
D. The Board may, upon due notice to the
Petitioner, set the petition for hearing 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 arguments on the petition. Notice to the
Petitioner setting such formal hearing will set forth, to the extent known, the
factual or other matters into which the Board intends to inquire. The
Petitioner will have the burden of proving all of 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 Board to consider.
E. Any ruling by the Board may be based
solely on the matters set forth in the petition or may be based on any
amendments to the petition, any information gathered by the Board through a
non-evidentiary hearing, formal hearing or otherwise, or any facts the Board
may take administrative notice of. Upon ruling on a petition, the Board will
issue its written order stating its basis for the order. A copy of the order
will be provided to the Petitioner.
7.7. Declaratory Orders Subject to Judicial
Review
Any declaratory order of a petition as set forth in Chapter7
of these Rule will constitute agency action subject to judicial review pursuant
to section
24-4-106, C.R.S.
