Rules Task Force

To: Members of the Rules Task Force

From: Tammy Shefelbine, Senate Counsel & Research Law Clerk (296-0108)

Date: November 28, 2000

Subject: Legislative Oversight of Agency Rules - Follow-Up Questions to 11/03/00 Meeting

George McCormick requested that I follow up on several questions put forth by the Rules Task Force from the November 3, 2000 meeting. The following are answers to those questions.

Colorado’s Administrative Procedure Act.

See Attachment A. Section 24-4-103 is the relevant part of the APA relating to the current discussion of this Task Force.

In Colorado the state APA provides that any agency rule adopted between November 1 of one year and November 1 of the subsequent year expires May 15, unless it is extended by law. Does the May 15 expiration date apply only to new rules?

No. The May 15 expiration date applies to any newly adopted or revised rule. If an agency readopts an existing rule, it is now subject to review and expiration even if the text of the rule was not changed.

No. The committee’s practice is to handle a rule that is "out-of-cycle" by using a repeal process, not the November to November timeframe.

See Attachment B. Senate Bill 00-120 is Colorado’s rule review bill from last year. The introductory language of the bill postpones the expiration of the rules department by department. That catch-all postponement of expiration covers all of the rules that the office approves without finding a problem and which are approved without the legislative committee hearing about it. The legislative committee only votes to extend or not extend rules that the staff brings to their attention at a legislative hearing.

How often does the Colorado legislative committee allow rules to lapse (expire or not be extended) at the May 15 expiration? How many lapse on average per year?

Last year, the office reviewed 9,232 pages of rules from 480 separate submittals of rules. Of those rules, the staff took 16 rules issues (counted by submittal) to the committee for action and resolved 37 rules with agencies. The agencies agreed to repromulgate rules or repeal rules to fix issues raised by staff.

Colorado does not have specific language on separation of powers in its APA. Colorado believes that the rule review process it follows with the automatic expiration and the requirement of a bill going through both houses of the General Assembly bypasses the Chadha case problem of a one-house veto. Colorado’s bill is a recommendation to the rest of the General Assembly and it goes through both houses and can be amended. Also, Colorado has a policy to never look at proposed rules because Colorado feels that it would violate the separation of powers principle inherent in its system and would violate the integrity of its process.

ATTACHMENT A: Colorado Rulemaking Procedure

ATTACHMENT A: Colorado Annotation

ATTACHMENT B: Colorado Senate Bill 00-120

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