The Legislature’s Role in the Review of Administrative Rules

by Chuck Brackney

The approach of fall brings a number of signals that the seasons are changing.  Leaves turning bright colors, colder temperatures, and the return of football are just some of these.  Around the Office of Legislative Legal Services (OLLS), though, the advent of autumn means that rule review season is in full swing.

The law governing the entire rulemaking process, the State Administrative Procedure Act (APA), directs executive branch agencies to submit all rules they adopt to OLLS.  These rules total thousands and thousands of pages each year and cover a wide range of subjects, from child care centers to water quality to specialty license plates to the educational qualifications for accountants.  Each of these rules is reviewed by OLLS to ensure that the rules are within the statutory authority granted by the General Assembly to the agency and that the rules do not conflict with the statutes enacted by the legislature concerning the activity in question.

Agencies, boards, and commissions adopt rules and submit them to the OLLS throughout the year.  The APA establishes a year-round cycle for review of these rules.  All rules adopted between November 1 and October 31 of the next year are slated for automatic expiration on May 15 of the year that follows the end of this cycle.  For example, a rule adopted by the Colorado podiatry board on July 1, 2011, automatically expires on May 15, 2012.  The mechanism for keeping alive rules that are set for expiration is the annual rule review bill, which extends all rules the General Assembly believes are within the authority granted to the board or agency adopting them.

OLLS staff do very little rule review during the legislative session, and much of the review is done during the summer.  This allows for adequate time to contact the agency if there are any questions regarding their rules.  Usually, when the OLLS identifies an issue with an adopted rule, the issue can be resolved during this early communication.  Other times, when the OLLS believes that a rule either goes beyond the authority granted to the agency or conflicts with a statute, we set the rule aside for closer scrutiny.

In the fall, we take a harder look at the rules that we have identified as having problems.  If the agency disagrees with our opinion or is unable to fix the problems we have identified with the rule, the rules are scheduled for the agenda of the Committee on Legal Services.  The Committee typically handles its rule issues in the fall, at meetings that take place between September and December.  The goal of these meetings is to address as many of the rule issues as possible before the start of the next legislative session.

Only rules that the OLLS identifies as having problems are taken before the Committee on Legal Services.  The vast majority of rules are approved by OLLS staff and no further action is necessary.

Once we have decided to go forward with a rule issue, we prepare a memorandum outlining our concerns with the rule and why we believe it should be allowed to automatically expire, as set out by the State Administrative Procedure Act.  This memo is sent ahead of time to not only members of the Committee on Legal Services, but also to the agency that adopted the rule.  This memo serves as the basis of the oral presentation before the Committee at the rule review hearing.  The Committee may also hear testimony from agency staff, the Attorney General’s Office, and the public.

After discussion of the rule issue and consideration of the arguments, the Committee votes on whether to allow the rule to avoid the automatic expiration.  If the Committee votes to agree with the staff recommendation, the rule is then put in the annual rule review bill, where it will go through the entire legislative process.  If both houses of the General Assembly and the Governor approve the bill, each rule identified in the bill will be allowed to expire on May 15 following the end of the legislative session.

If the Committee believes the rule is proper and within the authority of the agency, then the rule is not placed in the rule review bill and continues in force.

Debbie Haskins supervises the rule review process at OLLS.  For more information, you can contact her at debbie.haskins@state.co.us or Chuck Brackney at chuck.brackney@state.co.us.

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