Researching Colorado Regulations
| Publication year | 2023 |
| Pages | 14 |
DEPARTMENT | LEGAL RESEARCH CORNER
Researching Colorado Regulations
BY KATHARINE HALES
When conducting legal research, the focus is often on locating primary law in the form of statutes enacted by the legislature and case law issued by the courts. However, there are other types of primary law issued by other governmental entities. In particular, the executive branch issues law in the form of rules and regulations and administrative decisions. Because the Colorado executive branch consists of over 100 agencies organized under 20 primary executive departments, researching administrative law in the state can be complicated. It's helpful to understand the statutory requirements for rulemaking and the historical publication requirements of the rules.
This article provides an overview of rulemaking authority, the rulemaking requirements defined by the State Administrative Pro cedure Act (State APA)[1], the publication history of the rules, and descriptions of how to locate current and proposed rules and regulations. Researching regulatory history in Colorado will be covered in a forthcoming article.
Rulemaking Authority and the State Administrative Procedure Act
Article III of the Colorado Constitution provides that the "powers of the government of this state are divided into three distinct departments—the legislative, executive and judicial" and that those powers are to be exercised solely by the departments to which they belong. The power vested in the executive branch is to "take care that the laws be faithfully executed," and the legislative power is vested in the legislature.[2]Although the legislature may not delegate its legislative power, to support the executive branch in enforcing the laws enacted by the legislature, it may create agencies and grant rulemaking authority to those agencies.[3]
In Colorado, a "rule" is defined as "the whole or any part of every agency statement of general applicability and future effect implementing, interpreting, or declaring law or policy or setting forth the procedure or practice requirements of any agency. 'Rule' includes 'regulation.'"[4]
When the legislature grants rulemaking authority to an agency, it does so in the form of an enabling statute, which grants and limits the agency's rulemaking authority to address specific policies.[5] Typically the enabling statute for a given agency is included with the statutes creating that agency. To determine if the legislature has granted rulemaking authority to an agency, you can review the statutes creating the agency or you can review the "Grants of Rulemaking Authority" table located in the Tables volume of the Colorado Revised Statutes. This table provides a list of agencies with rulemaking authority and citations to the enabling statutes defining that authority. The table is useful for both determining if an agency has rulemaking authority and identifying many of the agencies that exist in Colorado. The table does not include agencies that do not have rulemaking authority, but there is a directory of all state agencies with their contact information available on the state's website.[6]
The State APA was first adopted in 1959, born from a need to uniformly regulate the administrative procedures of the state's various agencies.[7] Many agencies were granted rulemaking authority prior to the adoption of the State APA; however, the statutes were often inconsistent or silent as to the required procedure regarding an agency's administrative powers.[8] The State APA established a required timeline and rulemaking process that applies to all state agencies within the executive branch, unless explicitly exempted.[9] The procedure, as defined by the State APA, includes the following requirements: notice of proposed rulemaking, a public comment period, a public hearing, review of the final adopted rule by the Attorney General's Office, and publication of the final rule.[10] Exceptions are provided for the adoption of emergency rules, but even emergency rules must ultimately undergo the same process before they can be deemed permanent.[11] A rulemaking timeline tutorial that breaks down the timing and requirements in the State APA mandated rulemaking process is available on the Secretary of State's website.[12]
Publication History of the Rules and Regulations
There were no standard statutory requirements for the publication of administrative rules before the State APA was enacted in 1959, although some of the statutes granting rulemaking authority did specify requirements for notification and/or publication.[13] Even in the absence of statutory requirements, some agencies would occasionally publish their rules in small booklets or provide notice in a variety of ways.[14] However, there was a lack of consistency regarding notice and publication of adopted rules. The initial enactment of the State APA in 1959 provided the first set of general statutory requirements regarding the publication of administrative rules in Colorado. This first iteration required agencies to publish or give notice of proposed rulemaking or an adopted rule by mailing a copy to each person on their mailing list of interested persons and by maintaining a copy of the rules permanently available for public inspection at the agency's office.[15] Moreover, many of the statutes that existed before the State APA was adopted remained unamended, and some subsequent legislation even provided contradictory timing and notice requirements.[16]
The General Assembly first addressed the need for a centralized location of the state's administrative rules in 1969. The 1969 amendment to the State APA provided for the creation of a "Colorado...
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