Legislative Review of Administrative Rules: A History of Oversight – Part 2

by Thomas Morris

In our previous article about the history of rule review, we looked at the process from its pre-legislative oversight era to 1976, when the General Assembly required legislative oversight of executive branch rules. In today’s article, we pick up one year later, when the General Assembly made more changes to the process.

Legislative review of existing rules. In 1977, just one year after directing committees of reference or the Committee on Legal Services (COLS) to conduct the initial level of legislative oversight of new rules, the General Assembly enacted a law[1] that, among several other significant changes, removed the authority to amend a rule and directed the “legislative drafting office” (the predecessor to the OLLS) to conduct the initial review:

24-4-103.  Rule-making – procedure. (8) (d)  All rules adopted or amended on or after July 1, 1976, including temporary or emergency rules, shall be submitted by the adopting agency to the appropriate committees of reference of the general assembly, if the general assembly is in session or to legislative drafting office in the form and manner prescribed by the committee on legal services. Said rules and amendments to existing rules shall be filed by and in such office and shall be first reviewed by the staff of said committee to determine whether said rules and amendments are within the agency’s rule-making authority, and for later review by the committee of legal services if the general assembly is not in session, for its opinion as to whether the rules conform with paragraph (a) of this subsection (8). The official certificate of the director of the legislative drafting office as to the fact of submission or the date of submission or a rule as shown by the records of his office, as well as to the fact of nonsubmission as shown by the nonexistence of such records, shall be received and held in all civil cases as competent evidence of the facts contained therein. Any such rule or amendment to an existing rule issued by any agency without being so submitted to the appropriate committees of reference or within twenty days after the date of the attorney general’s opinion rendered thereon to the legislative drafting office for review by the committee of legal services shall be void. The staff’s finding shall be presented to said committee at a public meeting held after timely notice to the public and affected agencies. The committee on legal services shall, on affirmative vote, submit such rules, comments, and resolutions as deemed appropriate to the legislative committees of reference proposed legislation at the next regular session of the general assembly. The committee on legal services shall be the committee of reference for any bill introduced pursuant to this paragraph (d). A committee of reference, or the committee on legal services, or Any member of the general assembly may introduce a bill which amends or rescinds or deletes portions of the rule. Rejection of such a bill does not constitute legislative approval of the rule. Only that portion of any rule specifically disapproved by bill shall no longer be effective, and that portion of the rule which remains after deletion of a portion thereof shall retain its character as an administrative rule. Passage of a bill repealing a rule does not result in revival of a predecessor rule.  Where the rule or amendment to an existing rule will have a fiscal impact on the state or any of its political subdivisions, the agency shall include a fiscal statement thereof with the rule or amendment submitted to the appropriate committees of reference or the committee on legal services legislative drafting office. This paragraph (d) does not apply to rules of agency organization or general statements of policy which are not meant to be binding as rules. For the purpose of performing the functions assigned it by this paragraph (d), the committee on legal services, with the approval of the speaker of the house of representatives and the president of the senate, may appoint subcommittees from the membership of the general assembly. In addition, the said committee shall establish a program for the systematic review of all agency rules adopted prior to July 1, 1976, and in effect at the time of such review, which review shall be completed within a reasonable time not to exceed five years.

Significantly, the final sentence of this statute directed the COLS to “establish a program for the systematic review of all agency rules adopted prior to July 1, 1976”.[2] In 1979, evidently to implement this program for legislative review of existing rules, the General Assembly enacted HB79-1063, which:

  • Provided for the automatic expiration of all new rules on the June 1 of the year after their adoption unless the expiration is postponed by bill;[3]
  • Struck the final sentence of section 24-4-103 (8)(d), C.R.S.;[4] and
  • Enacted section 24-4-108, C.R.S.[5]

Section 24-4-108 (1) provided that, “[u]nless extended by the general assembly acting by bill, all of the rules and regulations of the principal departments shall expire on the dates specified in this section.” Subsections (2) through (6) of this section then specified, respectively, that all existing rules of the various departments would expire on July 1 of the five years commencing on or after July 1, 1980. Subsection (7) specified that the General Assembly could “postpone by bill the expiration of rules and regulations, or any portion thereof, as often as necessary, but no such postponement shall exceed four years.”[6] The General Assembly also amended subsection (7) to authorize the COLS to “establish procedures for the implementation of review of rules and regulations contemplated by this section including, but not limited to, a procedure for annual review of rules and regulations which may conflict with statutes or statutory changes adopted subsequent to review of a department’s rules and regulations pursuant to this section.”[7]

After this 5-year legislative review of existing rules ran its course,[8] the statutes governing the legislative review of rules assumed much of their current form:

  • The validity of existing rules is not reviewed unless included in a submittal that amends existing rules or adds new rules;
  • All new rules must be submitted to the attorney general and OLLS for review of their statutory authority;
  • All new rules automatically expire on the May 15 that follows the one-year period from Novem ber 1 to October 31, unless the General Assembly postpones the expiration acting by bill; and
  • The OLLS takes rules that it believes lack statutory authority or conflict with statute to the COLS, which holds a hearing to make its determination. Those determinations are then compiled into the annual rule review bill.

For a LegiSource article that explains the current standards and procedures for legislative rule review in more detail, see “Parsing Powers: Legislative Review of State Department Rules“.

 

[1] HB 77-1646; L. 77, p. 1141, §1.

[2] Recall that the General Assembly had already directed the attorney general to review all existing rules in section 3-16-2 (8)(c) (enacted by SB 67-102) (see footnote 7 above).

[3] L. 79, p. 845, §1. The General Assembly later modified law governing the automatic expiration of rules, section 24-4-103 (8)(c)(I), C.R.S., by specifying that all rules adopted during the one-year period from November 1 to the following October 31 automatically expire on the May 15 that follows the one-year period unless the General Assembly postpones the expiration acting by bill. SB 93-035; L. 93, p. 496, §1.

[4] L. 79, p. 845, §2.

[5] L. 79, p. 846, §3.

[6]The General Assembly soon repealed the four-year limit on postponement. SB 81-294; L. 81, p. 1145, §1.

[7] SB 81-294; L.81, p. 1145, §1.

[8] The legislature enacted several bills to repeal parts or all of subsections (2) through (6) of section 24-4-108, C.R.S., from 1980 to 1984.