6 Colo. Code Regs. § 1007-3-7.08

Current through Register Vol. 47, No. 11, June 10, 2024

Section 6 CCR 1007-3-7.08 - Prehearing Procedure

(1). These prehearing procedures provide a process by which issues related to a proposed rule are raised and discussed. It is the strong desire of the Commission that the parties and the Division resolve as many issues as possible by negotiation prior to the hearing. The Hearing Officer or the Commission, at its sole discretion, may amend the prehearing process through an order issued by the Hearing Officer or the Commission.

a.Selection and Authority of the Hearing Officer. The Commission Administrator requests that a Commissioner volunteer to serve as the Hearing Officer for the prehearing process and the rulemaking hearing. If no Commissioner volunteers, the Commission Administrator will appoint a Hearing Officer. The Hearing Officer may limit the number of pages in a prehearing statement or use the procedures set forth in Section 7.07(1)(a) and may limit the number of witnesses and exhibits. The Hearing Officer may limit the amount of time for direct and cross-examination of the witnesses, make any other decisions regarding the conduct of the hearing, and make any recommendations to the Commission regarding the hearing.

b.Rights and Obligations of Parties, Non-parties, and the Division.

I.Parties. Persons granted party status have the right to submit a prehearing statement, motions, response and rebuttal statements, expert testimony, alternate proposals or other documentation as permitted in these procedural rules and by the Commission or Hearing Officer.

II.Non-parties: Persons who do not desire party status but would like to participate in the rulemaking process may make their views known to the Commission on any rulemaking by submitting comments in writing in advance of the hearing or presenting oral testimony during the hearing at the time the Commission designates for public comment.

III.Division: In fulfilling its role as staff, the Division may present or submit evidence and testimony, provide background, summarize evidence and any matters settled before the hearing, make recommendations to the Commission and perform other duties as requested by the Commission. The Division or the Assistant Attorney General representing the Division may, as necessary to assist the Commission, make objections or cross-examine witnesses, in the discretion of the Commission. The Division, at its discretion, may affirmatively request party status pursuant to the procedure in this section. If the Division formally gains party status it may continue to provide staff services to assist the Commission, as directed by the Commission or the Hearing Officer. Whether the Division participates as staff, as a party, or both, it shall comply with the prehearing procedures.

c.Gaining Party Status. The requirements for gaining party status to any particular rulemaking typically are specified in the notice for that rulemaking. In order to be granted party status, the petitioner must comply with the requirements of this subsection. Where the notice of rulemaking specifies that a petition for party status is required, the petition shall be electronically filed and must:

(a) identify the applicant;

(b) provide the name, address, electronic mail address, and telephone of the applicant or applicant's representative; and

(c) briefly summarize what, if any, policy, factual, and legal issues the applicant has with the proposal(s) as of the time of filing the application. Electronically mailed copies must also be timely received by the Assistant Attorneys General representing the Commission and the Division. As may be modified by any notice for a rulemaking, the following will have party status in rulemaking proceedings before the Commission:

I.The Petitioner. Any person petitioning for rulemaking shall automatically be granted party status.

II.The Proponent of an Alternate Proposal. Any person who proposes an alternative to a proposed rule or revision shall comply with the filing requirements of this section and provide an alternate rule or revision and any other documents in accordance with Section 7.07(4)(j) or any other provision of these procedural rules. The required documents must be filed by the date specified in the notice for party status requests and not less than 20 days prior to the rulemaking hearing.

III.Any Other Person. Any person may seek party status by petitioning the Commission. The petition to the Commission shall include a brief summary that includes the reason in which the person is requesting party status. Granting of party status under this section is in the sole discretion of the Commission. The petition must be filed with the Commission as specified in the notice of rulemaking by electronic filing, and if not specified in the notice then no later than 20 days before the rulemaking hearing. If granted an exception to electronic filing, the requestor must complete filing for party status by submitting an original and three copies of the petition with the Commission by the date specified in the notice.

IV.Late Party Status. The Commission may grant party status requests submitted fewer than 20 days before the hearing on a particular rulemaking only upon written request and for good cause. Action on such request is at the discretion of the Commission or the Hearing Officer. Any such request must be filed with the Commission at the earliest possible opportunity, and must also be received by each party of record, the Division staff person identified in the notice, and the Assistant Attorneys General representing the Division and the Commission. Persons seeking party status by the act of proposing an alternative rule are subject to the time requirements provided in the notice or that are provided in Section 7.07(4)(j).

d.Status Conference. The Hearing Officer may require one or more status conferences with the Division and the parties to a rulemaking hearing. The Commission may, in the notice of rulemaking, make attending the status conference mandatory. Status conferences will typically be held prior to the prehearing conference, shortly after the close of the deadline for party status. The Hearing Officer will preside at the status conference. The goal of the status conference is to ascertain and discuss the issues involved in the rulemaking, and to ensure that the Division and the parties are making all necessary efforts to discuss and resolve all possible issues prior to the date that prehearing statements are due. The Hearing Officer may impose appropriate sanctions on any party that fails to attend a mandatory status conference. These sanctions may include limits on the issues that may be raised at the hearing, or the denial of party status.

e.Prehearing Conference. The Hearing Officer will set the date of the prehearing conference unless the date is specified in the notice of proposed rulemaking. The goals of the prehearing conference may include: the identification of stipulations; the identification of contested matters and issues to be raised at the hearing; the disposal of motions; the identification of witnesses and exhibits to be presented by the parties, the Division, and other persons (where applicable); and, the formulation of a prehearing order for the rulemaking proceeding. A prehearing order shall be prepared at the direction of the Hearing Officer based upon the prehearing conference. The order shall reflect any rulings made by the Hearing Officer with respect to procedures to be followed at the hearing, or any other matter. The order will specify the order of presentations and the time allotted for such presentations. The Hearing Officer may make any necessary or appropriate procedural rulings. Any party may appeal such rulings to the Commission by electronically filing a written appeal with the Commission (with copies provided simultaneously to all parties, the Division, and the Assistant Attorneys General representing the Division and the Commission) no later than seven working days prior to the hearing. The Hearing Officer may also make procedural decisions outside the prehearing conference, reflected in an order, e.g., requiring attendance at status conferences, requiring written briefs on particular legal or factual issues, requiring intermediate informational presentations, or segmenting the rulemaking hearings for the benefit of the Commission.

I.Participation mandatory. If the Commission determines that a prehearing conference is necessary, the Commission will specify when a prehearing conference will be held pursuant to paragraph (v) of this section. Any such conference shall be held not less than ten days in advance of the hearing, unless the Commission specifies otherwise. All parties and the Division shall participate in the prehearing conference in person. A party may submit, in writing, a request to not participate in the hearing in person. For good cause, the Hearing Officer may grant the request. Failure to comply with the requirements of this section may result in denial of a party status, dismissal of a party or limits on the issues that may be raised at the hearing.

f.Prehearing Statements. Unless provided otherwise in the notice of proposed rulemaking, at the time and place stated in the notice for the prehearing conference, the Division and every interested person who intends to testify at the hearing and offer exhibits into the records of the hearing shall exchange copies of a prehearing statement and shall submit electronic filings of their prehearing statement to the Commission Administrator, who shall distribute them to the Commissioners, the Assistant Attorneys General for the Commission and the Division, and the parties. It is the intent of the Commission that final positions on the issues in a rulemaking (including final alternate proposals) will be reflected in the prehearing statements for the prehearing conference, so that all necessary discussions and revisions to positions will take place before the prehearing statements are due. If it is apparent that the final positions of the parties and the Division are not reflected in the prehearing statements, i.e., if further discussions, revisions to positions, or alternate proposals are warranted at the time of the prehearing conference, the Hearing Officer may decide to continue the rulemaking hearing. The prehearing statement must contain:

I. A cover document that summarizes, in layperson's terms, the Division's or the party's general position and the contents of the prehearing statement. The cover document must also summarize any voluminous exhibits and provide a reasonable estimate of the time necessary for presentation at the hearing;

II. A prehearing statement that explains the factual and legal issues that arise from the rulemaking proposal, and the position being taken on each issue. Briefs discussing legal issues are encouraged, and may be required by the Hearing Officer;

III. A list of the issues to be resolved by the Commission during the hearing;

IV. Copies of all exhibits to be introduced at the hearing;

V. A list of witnesses who will testify and a brief description of their testimony, including where applicable, the exhibits they will discuss or rely upon. Any witnesses not listed in the prehearing statement will be prohibited from testifying unless the Hearing Officer approves the witness upon a request and for good cause;

VI. All written testimony to be offered into evidence at the hearing. (Note: the Commission encourages, and in some instances may require, witness testimony to be provided in writing);

VII. Any alternate proposal to the proposed rule in the format specified in Section 7.07(4)(j), above; and

VIII. Procedural or evidentiary issues and motions to be resolved.

g.Response Statements. Each party shall be afforded the opportunity to provide a response to prehearing statements filed by the proponent, the Division or any other party. Response statements are due 14 days following the filing of the prehearing statement or at such other date and time as set by the Hearing Officer. Response statements may also include identification of witnesses, testimony and exhibits.

h.Rebuttal Statements. The Hearing Officer through written order may allow for rebuttal statements by the proponent of the proposed rule to be filed electronically with the Commission within seven working days after the response statements are filed with the Commission. Written rebuttal statements may include identification of rebuttal witnesses, rebuttal testimony, and rebuttal exhibits. Rebuttal statements are limited to topics raised in the response statements of the proponent, the parties or the Division, and are not to raise new issues or arguments. New issues and arguments raised in rebuttal statements will not be addressed by the Commission. The rebuttal statement must be delivered by electronic mail to each party, to the Assistant Attorneys General for the Commission and Division, and to the Division staff person for the proceeding by 11:59 p.m. of that same day.

i.Additional Conferences. Where scheduling allows and it appears that an additional conference would be useful, the Hearing Officer may schedule an additional status conference prior to the hearing.

j.Alternate Proposals Offered After the Prehearing Conference. Except as provided in this subsection, the Hearing Officer will not accept an alternate proposal by a party after the prehearing conference. However, the parties are encouraged to develop consensus positions and to narrow the issues in contention based upon discussions during or after the prehearing conference and prior to a final Commission action in the proceeding provided the Commission and the parties have a reasonable opportunity to evaluate such alternate proposals. The Commission or the Hearing Officer may grant leave to submit such alternate proposed rule text for good cause shown. In granting or denying such leave, the Commission or the Hearing Officer will consider the timing of the proposal and the hearing, the complexity of the issues, and whether the parties and the Division are or expect to be in agreement on such alternate proposed rule text.

6 CCR 1007-3-7.08

37 CR 24, December 25, 2014, effective 3/2/2015

38 CR 11, June 10, 2015, effective 6/30/2015

39 CR 05, March 10, 2016, effective 3/30/2016

39 CR 11, June 10, 2016, effective 6/30/2016

40 CR 06, March 25, 2017, effective 4/14/2017

40 CR 11, June 10, 2017, effective 6/30/2017

40 CR 21, November 10, 2017, effective 11/30/2017

41 CR 06, March 25, 2018, effective 4/14/2018

41 CR 11, June 10, 2018, effective 6/30/2018

41 CR 24, December 25, 2018, effective 1/14/2019

42 CR 06, March 25, 2019, effective 4/14/2019

42 CR 06, March 25, 2019, effective 5/30/2019

42 CR 11, June 10, 2019, effective 6/30/2019

43 CR 12, June 25, 2020, effective 7/15/2020

44 CR 06, March 25, 2021, effective 4/14/2021

44 CR 11, June 10, 2021, effective 6/30/2021

44 CR 24, December 25, 2021, effective 1/14/2022

45 CR 11, June 10, 2022, effective 6/30/2022

45 CR 17, September 10, 2022, effective 9/10/2022

45 CR 17, September 10, 2022, effective 9/30/2022

45 CR 23, December 10, 2022, effective 1/30/2023