4 Colo. Code Regs. § 725-6, ch. 5

Current through Register Vol. 47, No. 18, September 25, 2024

Chapter 5 - Declaratory Orders

5.1. Petition for a Declaratory Order

Pursuant to section 24-4-105(11), C.R.S., a Petitioner may petition the Commission for a declaratory order to terminate controversies or to remove uncertainties as to the applicability of any statutory provision, rule, or order of the Commission as it would apply to the Petitioner.

5.2. Parties to the Proceedings

The parties to any proceeding as set forth in Chapter 5 of these Rules will be the Commission and the Petitioner. Any other person may seek leave of the Commission to intervene in such a proceeding. Permission to intervene will be granted at the sole discretion of the Commission. A petition to intervene will set forth the same matters as set forth in Rule 5.3.

5.3. Petition Contents

Any petition filed as set forth in Chapter 5 of these Rules will state the following:

A. The name and address of the Petitioner;

B. The statute, rule, or order to which the petition relates;

C. A concise statement of all the facts and law 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

D. The Petitioner may submit a concise statement of the declaratory order sought.

5.4. Commission's Considerations Whether or Not to Rule

The Commission may determine, in its sole discretion and without prior notice to the Petitioner, whether or not to rule upon a petition. In determining whether or not to rule upon a petition filed as set forth in Chapter 5 of these Rules, the Commission may consider the following matters, among others:

A. Whether a ruling on the petition will terminate a controversy or remove uncertainties as to the applicability to the Petitioner of any statutory provision, rule, or order of the Commission.

B. Whether the petition involves any subject, question, or issue which is the subject of a formal or informal matter or investigation currently pending before the Commission or a court involving one or more of the Petitioners.

C. Whether the petition involves any subject, question, or issue which is the subject of a formal or informal matter or investigation currently pending before the Commission or a court not involving the Petitioner.

D. Whether the petition seeks a ruling on a hypothetical question.

E. Whether the Petitioner has some other adequate legal remedy, other than an action for declaratory order which will terminate the controversy or remove any uncertainty as to the applicability to the Petitioner of the statute, rule, or order in question.

5.5. Commission Determines Not to Rule

If the Commission determines it will not rule on a petition, the Commission will issue its written decision disposing of the petition, stating the reasons for declining to rule upon the petition. A copy of the decision will be provided to the Petitioner. A decision not to rule on a petition for a declaratory order is not final agency action subject to judicial review.

5.6. Commission Determines to Rule

If the Commission determines that it will rule on the petition:

A. The Commission may order the Petitioner to file an additional written brief, memorandum, statement of position, or request the Petitioner to submit additional facts or arguments in writing.

B. The Commission may take administrative notice of facts pursuant to the Administrative Procedure Act, section 24-4-105(8), C.R.S., and may utilize its experience, technical competence, and specialized knowledge when ruling on the petition.

C. The Commission may set the petition, upon due notice to the Petitioner, for a non-evidentiary hearing.

D. The Commission may, upon due notice to the Petitioner, set the petition for hearing 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 arguments on the petition. Notice to the Petitioner setting such formal hearing will set forth, to the extent known, the factual or other matters into which the Commission intends to inquire. The Petitioner will have the burden of proving all of 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 Commission to consider.

E. Any ruling by the Commission may be based solely on the matters set forth in the petition or may be based on any amendments to the petition, any information gathered by the Commission through a non-evidentiary hearing, formal hearing or otherwise, or any facts the Commission may take administrative notice of. Upon ruling on a petition, the Commission will issue its written order stating its basis for the order. A copy of the order will be provided to the Petitioner.

5.7. Declaratory Orders Subject to Judicial Review

Any declaratory order of a petition as set forth in Chapter 5 of these Rules will constitute agency action subject to judicial review pursuant to section 24-4-106, C.R.S.

4 CCR 725-6, ch. 5

38 CR 01, January 10, 2015, effective 1/30/2015

44 CR 21, November 10, 2021, effective 11/30/2021