Justification for Emergency Rule Filing under 1 CCR 205-2
Colorado Department of Revenue
Motor Vehicle Dealer Board
This justification for emergency rules applies to each regulation implementing the provisions of Senate Bill 08-151 (hereafter, the “Act”). The Act established a pre-licensing education program requirement for license applicants for specified power-sports-vehicle-related licenses issued by the Motor Vehicle Dealer Board. The following are the emergency regulations required to implement the Act: 12-6-517(7)(d); 12-6-517(7)(f)(I); 12-6-517(7)(f)(II); 12-6-517(7)(f)(III); 12-6-517(7)(f)(IV); 12-6-517(7)(g); and, 12-6-517(7)(h).
The Act set the following effective date: “12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1(3) of the state constitution, (August 6, 2008, if adjournment sine die is on May 7, 2008); except that, if a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section, or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor.” The 2008 Session of the General Assembly adjourned on May 6, 2008. Therefore, the Act takes effect on August 5, 2008, absent any relevant referendum petition having been filed by August 5.
The Act provides that its provisions must apply to “applications for licensure submitted on or after thirty days after the effective date of this act.” Based on the anticipated August 5, 2008, effective date of the Act, the Act’s pre-licensing educational program must be available for the specified license applicants to participate in no later than September 4, 2008. This September deadline proved impossible for the Board to meet under Permanent Rule-making Procedures and Timelines, necessitating Emergency Rule-making for the reasons noted below:
1. Until the Governor signed the Act on April 21, 2008, the Motor Vehicle Dealer Board had neither a basis in law nor the fiscal authority to open rule-making related to the Act.
2. The Board’s first meeting subsequent to the Governor’s signature was May 8, 2008.
3. Insofar as the Act requires that rules effecting the Act must be in effect no later than September 4, 2008, the Board had to have filed a Notice of Hearing, with proposed permanent rules attached, no later than May 31, 2008, due to the permanent rule-making process deadlines and timelines triggered by a filing date.
4. In fact, the best case scenario for the Board would have been a Notice-of-Hearing filing for permanent rules no later than April 30, 2008. From such a filing, an August 5, 2008 effective date would have been possible. August 5, 2008 is a desirable effective date for permanent (or emergency) rules because the 30 days between August 5, 2008 and September 4, 2008 constitute a minimum reasonable time for an outside entity to apply for and to be approved to provide the pre-licensing education program by the September 4, 2008, operational deadline. However, the merely nine days between April 21, 2008 and April 30, 2008, for the Board to develop an entirely new, fully-integrated regulatory scheme would have been a rushed process unlikely to constitute good governance.
5. Principles of good governance made even a May 31, 2008 filing date for the Notice of Hearing impossible. The Act effectively requires the Board to undertake the selection, accreditation, oversight, and quality-control of pre-licensing education program providers who will be responsible to educate and certify license applicants in the large body of law and regulation under the jurisdiction of the Board. Establishing a regulatory scheme with such characteristics is a challenging and completely novel undertaking for the Motor Vehicle Dealer Board. Responsible governance required that the Board and the Auto Industry Division give considerable thought to the process and consult with staff experts, knowledgeable members of the regulated public, and potential educators who could deliver the educational program in order to draft regulations to put into a notice of hearing. Such deliberation and collaboration requires time in excess of merely a month.
6. In order for the Board to propound a reasonable set of regulations to put into a notice, the Board chose to proceed under the combination of Permanent Rule Notice filing and Emergency Rule procedures utilizing the same set of regulations. The Emergency Rule procedures were necessary to ensure that Board could meet the September 4, 2008, statutory deadline to implement the provisions of the Act, while allowing outside providers time between the anticipated effective date of the Emergency Rules, August 5, 2008, and the operational deadline, September 4, 2008, to apply for and to be approved to provide the pre-licensing education program by September 4, 2008.