No.

Ms. Paula Herzmark Executive Director Department of Local Affairs 1313 Sherman Street, Room 518 Denver, CO 80203

Dear Ms. Herzmark:

This is in reply to your inquiry of October 20, 1981, in which you request the attorney general's opinion as to two specific questions in order to clarify House bill 1309.

QUESTIONS PRESENTED AND CONCLUSIONS

Your request for an attorney general's opinion presents two questions:

1. Does C.R.S. 1973, 39-4-102(3)(c) (Supp. 1981) apply only to section 2 of H.B. 1309, or does it apply to C.R.S. 1973,39-4-102, as amended, in its entirety?

My answer to question one, stated above, is that C.R.S. 1973, 39-4-102(3)(c) (Supp. 1981), which was added by H.B. 1309, effective January 1, 1982, applies to C.R.S. 1973, 39-4-102, as amended, in its entirety.

2. Does "submission by the adopting agency to the legislative drafting office in the form and manner prescribed by the committee on legal services" satisfy this provision, or does this provision require me to comply with all of C.R.S. 1973,24-4-103, as amended? (Emphasis added.)

C.R.S. 1973, 39-4-102(3)(c) (Supp. 1981) requires that all appraisal procedures, instructions, and factors utilized by the administrator in carrying out the valuation of public utilities pursuant to C.R.S. 1973, 39-4-102, as amended, be submitted by the administrator to the legislative drafting office in the form and manner prescribed by the committee on legal services. C.R.S. 1973, 39-4-102 (3)(c) does not require compliance with the other provisions of C.R.S. 1973, 24-4-103, as amended. However, if other statutes such as C.R.S. 1973, 39-2-108 (Supp. 1980) and C.R.S. 1973, 39-5-203(2)(b) and (c) (Supp. 1980) require rulemaking then the administrator must comply with all applicable provisions of C.R.S. 1973, 24-4-103.

ANALYSIS

1. C.R.S. 1973, 39-4-102(3)(c) (Supp. 1981) reads, as follows:

(c) Appraisal procedures, instructions, and factors utilized by the administrator in carrying out the provisions of this section shall be subject to legislative review, the same as rules and regulations, pursuant to section 24-4-103(3)(d), C.R.S. 1973.

(Emphasis added.) The words "of this section" refer to the entire section, namely C.R.S. 1973, 39-4-102 not just section 2 of H.B. 1309 (1981 Colo. Sess. Laws ch. 452, pp. 1847-1848), which only added new subsections.

2. C.R.S. 1973, 39-4-102(3)(c) (Supp. 1981), quoted above, states that the appraisal procedures, instructions, and factors which the administrator uses in the valuation of public utilities, pursuant to C.R.S. 1973, 39-4-102, as amended, "shall be subject to legislative review, the same as rules and regulations, pursuant to section 24-4-103(8)(d), C.R.S. 1973."

Certainly, the administrator is required to submit to the committee on legal services all appraisal procedures, instructions and factors utilized in the valuation of public utilities pursuant to C.R.S. 1973, 39-4-102, as amended.

Whether the administrator must comply with the other provisions set forth in C.R.S. 1973, 24-4-103 (Supp. 1980), governing rulemaking will depend upon the statute under which the administrator is acting. In those instances where the administrator is required by law to make rules, such as she is required to do by C.R.S. 1973, 39-2-108 (Supp. 1980) and C.R.S. 1973, 39-5-203(2)(b) (Supp. 1980), compliance must be had with both the controlling statutes and C.R.S. 1973, 24-4-103 (Supp. 1980). Likewise, in those instances in which the administrator is permitted to promulgate rules in the implementation of a statute, the rulemaking procedure set forth in C.R.S. 1973, 24-4-103 (Supp. 1980) is applicable and must be followed when adopting rules.

SUMMARY

C.R.S. 1973, 39-4-102(3)(c) (Supp. 1981) requiring submission of appraisal procedures for legislative review applies to all utility appraisal procedures, instructions, and factors used by the administrator in valuing a public utility. Mere submission of the rules as required by C.R.S. 1973, 24-4-108(d) fulfills the administrator's obligation and H.B. 1309. However, other statutes may, in some circumstances require that you comply with other provisions of the Administrative Procedure Act.

Very truly yours,

J.D. MacFARLANE Attorney General

PUBLIC UTILITIES TAXATION AND REVENUE RULES AND REGULATIONS

C.R.S. 1973, 39-4-102(3)(c) C.R.S. 1973, 24-4-103 C.R.S. 1973, 39-2-108 C.R.S. 1973, 39-5-203(2)(b) C.R.S. 1973, 24-4-108(d)

AFFAIRS, LOCAL, DEPT. OF Property Taxation, Div. of

Holding that: (1) C.R.S. 1973, 39-4-102(3)(c) requiring that appraisal procedures shall be subject to legislative review applies to C.R.S. 1973, 39-4-102 not just 39-4-102(3)(c); (2) submission of the procedures for legislative review as required by 24-4-108 fulfills the administrator's obligation.