Current through Register Vol. 47, No. 5, March 10, 2024
The purpose of this Rule is to establish procedures for the
handling of requests for declaratory orders filed pursuant to the Colorado
Administrative Procedure 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
discretion and without notice to petitioner, whether to rule upon such
petition. If the Director determines not rule upon such a petition, the
Director will promptly notify the petitioner of her 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
C.R.C.P. 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 must set forth the following:
1. The name and address of the petitioner and
whether the petitioner is certified pursuant to Title 12, Article 305,
C.R.S.
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 will rule on the petition, the following
procedures 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 Colorado Administrative
Procedure Act at section
24-4-105(8),
C.R.S., and may utilize her experience, technical competence, and specialized
knowledge in the disposition of the petition.
g. If the Director rules upon the petition
without a hearing, she will promptly notify the petitioner of her
decision.
2. The
Director may, at her 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 hearing notice to the petitioner must set forth,
to the extent known, the factual or other matters that the Director intends to
inquire. For the purpose of such a hearing, to the extent necessary, the
petitioner has 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 are 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 must
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 constitutes agency action subject
to judicial review pursuant to the Colorado Administrative Procedure Act at
section 24-4-106, C.R.S.
