2007 Oregon Code - Chapter 183 :: Chapter 183 - Administrative Procedures Act - Legislative Review of Rules - Civil Penalties
Chapter 183
Administrative Procedures Act; Legislative
Review of
Rules; Civil Penalties
2007 EDITION
ADMINISTRATIVE PROCEDURES ACT
EXECUTIVE BRANCH; ORGANIZATION
ADMINISTRATIVE PROCEDURES ACT
(General Provisions)
183.310 Definitions
for chapter
183.315 Application
of provisions of chapter to certain agencies
(Adoption of Rules)
183.325 Delegation
of rulemaking authority to named officer or employee
183.330 Description
of organization; service of order; rules coordinator; effect of not putting order
in writing
183.332 Policy
statement; conformity of state rules with equivalent federal laws and rules
183.333 Policy
statement; public involvement in development of policy and drafting of rules;
advisory committees
183.335 Notice;
content; public comment; temporary rule adoption, amendment or suspension;
substantial compliance required
183.336 Cost
of compliance effect on small businesses
183.337 Procedure
for agency adoption of federal rules
183.341 Model
rules of procedure; establishment; compilation; publication; agencies required
to adopt procedural rules
183.355 Filing
and taking effect of rules; filing of executive orders; copies
183.360 Publication
of rules and orders; exceptions; requirements; bulletin; judicial notice;
citation
183.362 Program
for biennial publication of Oregon Administrative Rules
183.365 Publication
of administrative rules in electronic form
183.370 Distribution
of published rules
183.390 Petitions
requesting adoption of rules
183.400 Judicial
determination of validity of rule
183.405 Agency
review of rules
183.410 Agency
determination of applicability of rule or statute to petitioner; effect;
judicial review
(Contested Cases)
183.411 Delegation
of final order authority
183.413 Notice
to parties before hearing of rights and procedure; failure to provide notice
183.415 Notice
of right to hearing
183.417 Procedure
in contested case hearing
183.425 Depositions
or subpoena of material witness; discovery
183.430 Hearing
on refusal to renew license; exceptions
183.435 Period
allowed to request hearing for license refusal on grounds other than test or
inspection results
183.440 Subpoenas
in contested cases
183.445 Subpoena
by agency or attorney of record of party when agency not subject to ORS 183.440
183.450 Evidence
in contested cases
183.452 Representation
of agencies at contested case hearings
183.457 Representation
of persons other than agencies participating in contested case hearings
183.458 Nonattorney
representation of parties in certain contested case hearings
183.460 Examination
of evidence by agency
183.462 Agency
statement of ex parte communications; notice
183.464 Proposed
order by hearing officer; amendment by agency; exemptions
183.470 Orders
in contested cases
(Judicial Review)
183.480 Judicial
review of agency orders
183.482 Jurisdiction
for review of contested cases; procedure; scope of court authority
183.484 Jurisdiction
for review of orders other than contested cases; procedure; scope of court
authority
183.485 Decision
of court on review of contested case
183.486 Form
and scope of decision of reviewing court
183.490 Agency
may be compelled to act
183.497 Awarding
costs and attorney fees when finding for petitioner
(Appeals From Circuit Courts)
183.500 Appeals
(Alternative Dispute Resolution)
183.502 Authority
of agencies to use alternative means of dispute resolution; model rules;
amendment of agreements and forms; agency alternative dispute resolution
programs
(Housing Cost Impact Statement)
183.530 Housing
cost impact statement required for certain proposed rules
183.534 Housing
cost impact statement described; rules
183.538 Effect
of failure to prepare housing cost impact statement; judicial review
(Effects of Rules on Small Business)
183.540 Reduction
of economic impact on small business
(Office of Administrative Hearings)
183.600 Definitions
183.605 Office
of Administrative Hearings
183.610 Chief
administrative law judge
183.615 Administrative
law judges; duties; qualifications; rules
183.620 Contract
administrative law judges
183.625 Assignment
of administrative law judges; conduct of hearings
183.630 Model
rules of procedure; exemptions; depositions
183.635 Agencies
required to use administrative law judges from Office of Administrative
Hearings; exceptions
183.640 Use
of Office of Administrative Hearings by exempt agencies and by political
subdivisions
183.645 Request
for change of administrative law judge; rules
183.650 Form
of order; modification of form of order by agency; finding of historical fact
183.655 Fees
183.660 Office
of Administrative Hearings Operating Account
183.665 Estimates
of office expenses
183.670 Rules
183.675 Alternative
dispute resolution
183.680 Standards
and training program
183.685 Ex
parte communications
183.690 Office
of Administrative Hearings Oversight Committee
PERMITS AND LICENSES
183.700 Permits
subject to ORS 183.702
183.702 Statement
of criteria and procedures for evaluating permit application; documentation of
decision on application; required signature
183.705 Extended
term for renewed licenses; fees; continuing education; rules
LEGISLATIVE REVIEW OF RULES
183.710 Definitions
for ORS 183.710 to 183.725
183.715 Submission
of adopted rule to Legislative Counsel required; exception
183.720 Procedure
for review of agency rule; reports on rules claimed to be duplicative or
conflicting
183.722 Required
agency response to Legislative Counsel determination
183.725 Report
of Legislative Counsel Committee to agencies and Legislative Assembly
CIVIL PENALTIES
183.745 Civil
penalty procedures; notice; hearing; judicial review; exemptions; recording;
enforcement
READABILITY OF PUBLIC WRITINGS
183.750 State
agency required to prepare public writings in readable form
183.010 [Repealed by 1971 c.734 §21]
183.020 [Repealed by 1971 c.734 §21]
183.025 [Formerly 182.065; 1993 c.729 §4; 2003 c.749
§8; renumbered 183.750 in 2003]
183.030 [Repealed by 1971 c.734 §21]
183.040 [Repealed by 1971 c.734 §21]
183.050 [Repealed by 1971 c.734 §21]
183.060 [1957 c.147 §1; repealed by 1969 c.292 §3]
183.090 [1991 c.734 §2; 1997 c.387 §3; 2001 c.621 §71;
renumbered 183.745 in 2003]
ADMINISTRATIVE
PROCEDURES ACT
(General
Provisions)
183.310
Definitions for chapter. As
used in this chapter:
(1) Agency means any state board,
commission, department, or division thereof, or officer authorized by law to
make rules or to issue orders, except those in the legislative and judicial
branches.
(2)(a) Contested case means a proceeding
before an agency:
(A) In which the individual legal rights,
duties or privileges of specific parties are required by statute or
Constitution to be determined only after an agency hearing at which such
specific parties are entitled to appear and be heard;
(B) Where the agency has discretion to
suspend or revoke a right or privilege of a person;
(C) For the suspension, revocation or
refusal to renew or issue a license where the licensee or applicant for a
license demands such hearing; or
(D) Where the agency by rule or order
provides for hearings substantially of the character required by ORS 183.415,
183.417, 183.425, 183.450, 183.460 and 183.470.
(b) Contested case does not include
proceedings in which an agency decision rests solely on the result of a test.
(3) Economic effect means the economic
impact on affected businesses by and the costs of compliance, if any, with a
rule for businesses, including but not limited to the costs of equipment,
supplies, labor and administration.
(4) Hearing officer includes an
administrative law judge.
(5) License includes the whole or part
of any agency permit, certificate, approval, registration or similar form of
permission required by law to pursue any commercial activity, trade, occupation
or profession.
(6)(a) Order means any agency action
expressed orally or in writing directed to a named person or named persons,
other than employees, officers or members of an agency. Order includes any
agency determination or decision issued in connection with a contested case
proceeding. Order includes:
(A) Agency action under ORS chapter 657
making determination for purposes of unemployment compensation of employees of
the state;
(B) Agency action under ORS chapter 240
which grants, denies, modifies, suspends or revokes any right or privilege of
an employee of the state; and
(C) Agency action under ORS 468B.050 to
issue a permit.
(b) Final order means final agency
action expressed in writing. Final order does not include any tentative or
preliminary agency declaration or statement that:
(A) Precedes final agency action; or
(B) Does not preclude further agency
consideration of the subject matter of the statement or declaration.
(7) Party means:
(a) Each person or agency entitled as of
right to a hearing before the agency;
(b) Each person or agency named by the
agency to be a party; or
(c) Any person requesting to participate
before the agency as a party or in a limited party status which the agency
determines either has an interest in the outcome of the agencys proceeding or
represents a public interest in such result. The agencys determination is
subject to judicial review in the manner provided by ORS 183.482 after the
agency has issued its final order in the proceedings.
(8) Person means any individual,
partnership, corporation, association, governmental subdivision or public or
private organization of any character other than an agency.
(9) Rule means any agency directive,
standard, regulation or statement of general applicability that implements,
interprets or prescribes law or policy, or describes the procedure or practice
requirements of any agency. The term includes the amendment or repeal of a
prior rule, but does not include:
(a) Unless a hearing is required by
statute, internal management directives, regulations or statements which do not
substantially affect the interests of the public:
(A) Between agencies, or their officers or
their employees; or
(B) Within an agency, between its officers
or between employees.
(b) Action by agencies directed to other
agencies or other units of government which do not substantially affect the
interests of the public.
(c) Declaratory rulings issued pursuant to
ORS 183.410 or 305.105.
(d) Intra-agency memoranda.
(e) Executive orders of the Governor.
(f) Rules of conduct for persons committed
to the physical and legal custody of the Department of Corrections, the
violation of which will not result in:
(A) Placement in segregation or isolation
status in excess of seven days.
(B) Institutional transfer or other
transfer to secure confinement status for disciplinary reasons.
(C) Disciplinary procedures adopted
pursuant to ORS 421.180.
(10) Small business means a corporation,
partnership, sole proprietorship or other legal entity formed for the purpose
of making a profit, which is independently owned and operated from all other
businesses and which has 50 or fewer employees. [1957 c.717 §1; 1965 c.285 §78a;
1967 c.419 §32; 1969 c.80 §37a; 1971 c.734 §1; 1973 c.386 §4; 1973 c.621 §1a;
1977 c.374 §1; 1977 c.798 §1; 1979 c.593 §6; 1981 c.755 §1; 1987 c.320 §141;
1987 c.861 §1; 2003 c.75 §71; 2005 c.523 §8; 2007 c.288 §9]
Note: See note under 183.417.
183.315
Application of provisions of chapter to certain agencies. (1) The provisions of ORS 183.410, 183.415,
183.417, 183.425, 183.440, 183.450, 183.452, 183.458, 183.460, 183.470 and
183.480 do not apply to local government boundary commissions created pursuant
to ORS 199.430, the Department of Revenue, State Accident Insurance Fund
Corporation, Department of Consumer and Business Services with respect to its
functions under ORS chapters 654 and 656, Psychiatric Security Review Board or
State Board of Parole and Post-Prison Supervision.
(2) This chapter does not apply with
respect to actions of the Governor authorized under ORS chapter 240 and ORS
396.125 or actions of the Adjutant General authorized under ORS 396.160 (14).
(3) The provisions of ORS 183.410,
183.415, 183.417, 183.425, 183.440, 183.450, 183.452, 183.458 and 183.460 do
not apply to the Employment Appeals Board or the Employment Department.
(4) The Employment Department shall be
exempt from the provisions of this chapter to the extent that a formal finding
of the United States Secretary of Labor is made that such provision conflicts
with the terms of the federal law, acceptance of which by the state is a
condition precedent to continued certification by the United States Secretary
of Labor of the states law.
(5) The provisions of ORS 183.415 to
183.430, 183.440 to 183.460, 183.470 to 183.485 and 183.490 to 183.500 do not
apply to orders issued to persons who:
(a) Have been committed pursuant to ORS
137.124 to the custody of the Department of Corrections or are otherwise
confined in a Department of Corrections facility; or
(b) Seek to visit an inmate confined in a
Department of Corrections facility.
(6) ORS 183.410, 183.415, 183.417,
183.425, 183.440, 183.450, 183.460, 183.470 and 183.482 (3) do not apply to the
Public Utility Commission. Notwithstanding ORS 183.480 and except as provided
in ORS 757.495 and 759.390, only a party to a hearing before the Public Utility
Commission is entitled to seek judicial review of an order of the commission.
(7) The provisions of this chapter do not
apply to the suspension, cancellation or termination of an apprenticeship or
training agreement under ORS 660.060.
(8) The provisions of ORS 183.413 to
183.497 do not apply to administrative proceedings conducted under rules
adopted by the Secretary of State under ORS 246.190. [1971 c.734 §19; 1973
c.612 §3; 1973 c.621 §2; 1973 c.694 §1; 1975 c.759 §1; 1977 c.804 §45; 1979
c.593 §7; 1981 c.711 §16; 1987 c.320 §142; 1987 c.373 §21; 1989 c.90 §1; 1997
c.26 §1; 1999 c.448 §6; 1999 c.679 §1; 2003 c.64 §8; 2005 c.512 §30; 2005 c.638
§1; 2007 c.239 §8; 2007 c.288 §10]
Note: The amendments to 183.315 by section 8,
chapter 239,
183.315. (1) The provisions of ORS 183.410, 183.415,
183.417, 183.425, 183.440, 183.450, 183.452, 183.458, 183.460, 183.470 and
183.480 do not apply to local government boundary commissions created pursuant
to ORS 199.425 or 199.430, the Department of Revenue, State Accident Insurance
Fund Corporation, Department of Consumer and Business Services with respect to
its functions under ORS chapters 654 and 656, Psychiatric Security Review Board
or State Board of Parole and Post-Prison Supervision.
(2) This chapter does not apply with
respect to actions of the Governor authorized under ORS chapter 240 and ORS
396.125 or actions of the Adjutant General authorized under ORS 396.160 (14).
(3) The provisions of ORS 183.410,
183.415, 183.417, 183.425, 183.440, 183.450, 183.452, 183.458 and 183.460 do
not apply to the Employment Appeals Board or the Employment Department.
(4) The Employment Department shall be
exempt from the provisions of this chapter to the extent that a formal finding
of the United States Secretary of Labor is made that such provision conflicts
with the terms of the federal law, acceptance of which by the state is a
condition precedent to continued certification by the United States Secretary
of Labor of the states law.
(5) The provisions of ORS 183.415 to
183.430, 183.440 to 183.460, 183.470 to 183.485 and 183.490 to 183.500 do not
apply to orders issued to persons who:
(a) Have been committed pursuant to ORS
137.124 to the custody of the Department of Corrections or are otherwise
confined in a Department of Corrections facility; or
(b) Seek to visit an inmate confined in a
Department of Corrections facility.
(6) ORS 183.410, 183.415, 183.417,
183.425, 183.440, 183.450, 183.460, 183.470 and 183.482 (3) do not apply to the
Public Utility Commission. Notwithstanding ORS 183.480 and except as provided
in ORS 757.495 and 759.390, only a party to a hearing before the Public Utility
Commission is entitled to seek judicial review of an order of the commission.
(7) The provisions of this chapter do not
apply to the suspension, cancellation or termination of an apprenticeship or
training agreement under ORS 660.060.
(8) The provisions of ORS 183.413 to
183.497 do not apply to administrative proceedings conducted under rules adopted
by the Secretary of State under ORS 246.190.
Note: See note under 183.417.
183.317 [1971 c.734 §187; repealed by 1979 c.593 §34]
183.320 [1957 c.717 §15; repealed by 1971 c.734 §21]
(Adoption of
Rules)
183.325
Delegation of rulemaking authority to named officer or employee. Unless otherwise provided by law, an agency
may delegate its rulemaking authority to an officer or employee within the
agency. A delegation of authority under this section must be made in writing
and filed with the Secretary of State before the filing of any rule adopted
pursuant to the delegation. A delegation under this section may be made only to
one or more named individuals. The delegation of authority shall reflect the
name of the authorized individual or individuals, and be signed in
acknowledgment by the named individuals. Any officer or employee to whom
rulemaking authority is delegated under this section is an agency for the
purposes of the rulemaking requirements of this chapter. [1979 c.593 §10; 1993
c.729 §1]
183.330
Description of organization; service of order; rules coordinator; effect of not
putting order in writing.
(1) In addition to other rulemaking requirements imposed by law, each agency
shall publish a description of its organization and the methods whereby the
public may obtain information or make submissions or requests.
(2) Each state agency that adopts rules
shall appoint a rules coordinator and file a copy of that appointment with the
Secretary of State. The rules coordinator shall:
(a) Maintain copies of all rules adopted
by the agency and be able to provide information to the public about the status
of those rules;
(b) Provide information to the public on
all rulemaking proceedings of the agency; and
(c) Keep and make available the mailing list
required by ORS 183.335 (8).
(3) An order shall not be effective as to
any person or party unless it is served upon the person or party either
personally or by mail. This subsection is not applicable in favor of any person
or party who has actual knowledge of the order.
(4) An order is not final until it is
reduced to writing. [1957 c.717 §2; 1971 c.734 §4; 1975 c.759 §3; 1979 c.593 §8;
1993 c.729 §2; 2001 c.220 §3]
183.332
Policy statement; conformity of state rules with equivalent federal laws and rules. It is the policy of this state that agencies
shall seek to retain and promote the unique identity of
(1) There is specific statutory direction
to the agency that authorizes the adoption of the rule;
(2) A federal waiver has been granted that
authorizes the adoption of the rule;
(3) Local or special conditions exist in
this state that warrant a different rule;
(4) The state rule has the effect of
clarifying the federal rules, standards, procedures or requirements;
(5) The state rule achieves the goals of
the federal and state law with the least impact on public and private
resources; or
(6) There is no corresponding federal
regulation. [1997 c.602 §2]
183.333
Policy statement; public involvement in development of policy and drafting of
rules; advisory committees.
(1) The Legislative Assembly finds and declares that it is the policy of this
state that whenever possible the public be involved in the development of public
policy by agencies and in the drafting of rules. The Legislative Assembly
encourages agencies to seek public input to the maximum extent possible before
giving notice of intent to adopt a rule. The agency may appoint an advisory
committee that will represent the interests of persons likely to be affected by
the rule, or use any other means of obtaining public views that will assist the
agency in drafting the rule.
(2) Any agency in its discretion may
develop a list of interested parties and inform those parties of any issue that
may be the subject of rulemaking and invite the parties to make comments on the
issue.
(3) If an agency appoints an advisory
committee for consideration of a rule under subsection (1) of this section, the
agency shall seek the committees recommendations on whether the rule will have
a fiscal impact, what the extent of that impact will be and whether the rule
will have a significant adverse impact on small businesses. If the committee
indicates that the rule will have a significant adverse impact on small
businesses, the agency shall seek the committees recommendations on compliance
with ORS 183.540.
(4) An agency shall consider an advisory
committees recommendations provided under subsection (3) of this section in
preparing the statement of fiscal impact required by ORS 183.335 (2)(b)(E).
(5) If an agency does not appoint an
advisory committee for consideration of a permanent rule under subsection (1)
of this section and 10 or more persons likely to be affected by the rule object
to the agencys statement of fiscal impact as required by ORS 183.335 (2)(b)(E)
or an association with at least 10 members likely to be affected by the rule
objects to the statement, the agency shall appoint a fiscal impact advisory
committee to provide recommendations on whether the rule will have a fiscal
impact and what the extent of that impact will be. An objection under this
subsection must be made not later than 14 days after the notice required by ORS
183.335 (1) is given. If the agency determines that the statement does not
adequately reflect the rules fiscal impact, the agency shall extend the period
for submission of data or views under ORS 183.335 (3)(a) by at least 20 days.
The agency shall include any recommendations from the committee in the record
maintained by the agency for the rule.
(6) Subsection (5) of this section does
not apply to any rule adopted by an agency to comply with a judgment or a
settlement of a judicial proceeding. [2003 c.749 §4; 2005 c.807 §4]
183.335
Notice; content; public comment; temporary rule adoption, amendment or
suspension; substantial compliance required. (1) Prior to the adoption, amendment or repeal of any rule, the agency
shall give notice of its intended action:
(a) In the manner established by rule
adopted by the agency under ORS 183.341 (4), which provides a reasonable
opportunity for interested persons to be notified of the agencys proposed
action;
(b) In the bulletin referred to in ORS
183.360 at least 21 days prior to the effective date;
(c) At least 28 days before the effective
date, to persons who have requested notice pursuant to subsection (8) of this
section; and
(d) At least 49 days before the effective
date, to the persons specified in subsection (15) of this section.
(2)(a) The notice required by subsection
(1) of this section must include:
(A) A caption of not more than 15 words
that reasonably identifies the subject matter of the agencys intended action.
The agency shall include the caption on each separate notice, statement, certificate
or other similar document related to the intended action.
(B) An objective, simple and
understandable statement summarizing the subject matter and purpose of the
intended action in sufficient detail to inform a person that the persons
interests may be affected, and the time, place and manner in which interested
persons may present their views on the intended action.
(b) The agency shall include with the
notice of intended action given under subsection (1) of this section:
(A) A citation of the statutory or other
legal authority relied upon and bearing upon the promulgation of the rule;
(B) A citation of the statute or other law
the rule is intended to implement;
(C) A statement of the need for the rule
and a statement of how the rule is intended to meet the need;
(D) A list of the principal documents,
reports or studies, if any, prepared by or relied upon by the agency in
considering the need for and in preparing the rule, and a statement of the
location at which those documents are available for public inspection. The list
may be abbreviated if necessary, and if so abbreviated there shall be
identified the location of a complete list;
(E) A statement of fiscal impact
identifying state agencies, units of local government and the public which may
be economically affected by the adoption, amendment or repeal of the rule and
an estimate of that economic impact on state agencies, units of local
government and the public. In considering the economic effect of the proposed
action on the public, the agency shall utilize available information to project
any significant economic effect of that action on businesses which shall
include a cost of compliance effect on small businesses affected. For an agency
specified in ORS 183.530, the statement of fiscal impact shall also include a
housing cost impact statement as described in ORS 183.534;
(F) If an advisory committee is not
appointed under the provisions of ORS 183.333, an explanation as to why no
advisory committee was used to assist the agency in drafting the rule; and
(G) A request for public comment on
whether other options should be considered for achieving the rules substantive
goals while reducing the negative economic impact of the rule on business.
(c) The Secretary of State may omit the
information submitted under paragraph (b) of this subsection from publication
in the bulletin referred to in ORS 183.360.
(d) When providing notice of an intended
action under subsection (1)(c) of this section, the agency shall provide a copy
of the rule that the agency proposes to adopt, amend or repeal, or an
explanation of how the person may acquire a copy of the rule. The copy of an
amended rule shall show all changes to the rule by striking through material to
be deleted and underlining all new material, or by any other method that
clearly shows all new and deleted material.
(3)(a) When an agency proposes to adopt,
amend or repeal a rule, it shall give interested persons reasonable opportunity
to submit data or views. Opportunity for oral hearing shall be granted upon
request received from 10 persons or from an association having not less than 10
members before the earliest date that the rule could become effective after the
giving of notice pursuant to subsection (1) of this section. An agency holding
a hearing upon a request made under this subsection shall give notice of the
hearing at least 21 days before the hearing to the person who has requested the
hearing, to persons who have requested notice pursuant to subsection (8) of
this section and to the persons specified in subsection (15) of this section.
The agency shall publish notice of the hearing in the bulletin referred to in
ORS 183.360 at least 14 days before the hearing. The agency shall consider
fully any written or oral submission.
(b) If an agency is required to conduct an
oral hearing under paragraph (a) of this subsection, and the rule for which the
hearing is to be conducted applies only to a limited geographical area within
this state, or affects only a limited geographical area within this state, the
hearing shall be conducted within the geographical area at the place most
convenient for the majority of the residents within the geographical area. At
least 14 days before a hearing conducted under this paragraph, the agency shall
publish notice of the hearing in the bulletin referred to in ORS 183.360 and in
a newspaper of general circulation published within the geographical area that
is affected by the rule or to which the rule applies. If a newspaper of general
circulation is not published within the geographical area that is affected by
the rule or to which the rule applies, the publication shall be made in the
newspaper of general circulation published closest to the geographical area.
(c) Notwithstanding paragraph (a) of this
subsection, the Department of Corrections and the State Board of Parole and
Post-Prison Supervision may adopt rules limiting participation by inmates in
the proposed adoption, amendment or repeal of any rule to written submissions.
(d) If requested by at least five persons
before the earliest date that the rule could become effective after the agency
gives notice pursuant to subsection (1) of this section, the agency shall
provide a statement that identifies the objective of the rule and a statement
of how the agency will subsequently determine whether the rule is in fact
accomplishing that objective.
(e) An agency that receives data or views
concerning proposed rules from interested persons shall maintain a record of
the data or views submitted. The record shall contain:
(A) All written materials submitted to an
agency in response to a notice of intent to adopt, amend or repeal a rule.
(B) A recording or summary of oral
submissions received at hearings held for the purpose of receiving those
submissions.
(C) Any public comment received in
response to the request made under subsection (2)(b)(G) of this section and the
agencys response to that comment.
(D) Any statements provided by the agency
under paragraph (d) of this subsection.
(4) Upon request of an interested person
received before the earliest date that the rule could become effective after
the giving of notice pursuant to subsection (1) of this section, the agency
shall postpone the date of its intended action no less than 21 nor more than 90
days in order to allow the requesting person an opportunity to submit data,
views or arguments concerning the proposed action. Nothing in this subsection
shall preclude an agency from adopting a temporary rule pursuant to subsection
(5) of this section.
(5) Notwithstanding subsections (1) to (4)
of this section, an agency may adopt, amend or suspend a rule without prior
notice or hearing or upon any abbreviated notice and hearing that it finds
practicable, if the agency prepares:
(a) A statement of its findings that its
failure to act promptly will result in serious prejudice to the public interest
or the interest of the parties concerned and the specific reasons for its
findings of prejudice;
(b) A citation of the statutory or other
legal authority relied upon and bearing upon the promulgation of the rule;
(c) A statement of the need for the rule
and a statement of how the rule is intended to meet the need;
(d) A list of the principal documents,
reports or studies, if any, prepared by or relied upon by the agency in considering
the need for and in preparing the rule, and a statement of the location at
which those documents are available for public inspection; and
(e) For an agency specified in ORS
183.530, a housing cost impact statement as defined in ORS 183.534.
(6)(a) A rule adopted, amended or
suspended under subsection (5) of this section is temporary and may be
effective for a period of not longer than 180 days. The adoption of a rule
under this subsection does not preclude the subsequent adoption of an identical
rule under subsections (1) to (4) of this section.
(b) A rule temporarily suspended shall
regain effectiveness upon expiration of the temporary period of suspension
unless the rule is repealed under subsections (1) to (4) of this section.
(7) Notwithstanding subsections (1) to (4)
of this section, an agency may amend a rule without prior notice or hearing if
the amendment is solely for the purpose of:
(a) Changing the name of an agency by
reason of a name change prescribed by law;
(b) Changing the name of a program, office
or division within an agency as long as the change in name does not have a
substantive effect on the functions of the program, office or division;
(c) Correcting spelling;
(d) Correcting grammatical mistakes in a
manner that does not alter the scope, application or meaning of the rule;
(e) Correcting statutory or rule
references; or
(f) Correcting addresses or telephone
numbers referred to in the rules.
(8)(a) Any person may request in writing
that an agency send to the person copies of the agencys notices of intended
action issued under subsection (1) of this section. The person must provide an
address where the person elects to receive notices. The address provided may be
a postal mailing address or, if the agency provides notice by electronic mail,
may be an electronic mailing address.
(b) A request under this subsection must
indicate that the person requests one of the following:
(A) The person may request that the agency
mail paper copies of the proposed rule and other information required by
subsection (2) of this section to the postal mailing address.
(B) If the agency posts notices of
intended action on a website, the person may request that the agency mail the
information required by subsection (2)(a) of this section to the postal mailing
address with a reference to the website where electronic copies of the proposed
rule and other information required by subsection (2) of this section are
posted.
(C) If the agency provides notice by
electronic mail, the person may request that the agency electronically mail the
information required by subsection (2)(a) of this section to the electronic
mailing address, and either provide electronic copies of the proposed rule and
other information required by subsection (2) of this section or provide a
reference to a website where electronic copies of the proposed rule and other
information required by subsection (2) of this section are posted.
(c) Upon receipt of any request under this
subsection, the agency shall acknowledge the request, establish a mailing list
and maintain a record of all mailings made pursuant to the request. Agencies
may establish procedures for establishing the mailing lists and keeping the
mailing lists current. Agencies by rule may establish fees necessary to defray
the costs of mailings and maintenance of the lists.
(9) This section does not apply to rules
establishing an effective date for a previously effective rule or establishing
a period during which a provision of a previously effective rule will apply.
(10) This section does not apply to ORS
279.835 to 279.855, 279A.140 to 279A.155, 279A.250 to 279A.290, 279A.990,
279B.050 to 279B.085, 279B.200 to 279B.240, 279B.270, 279B.275, 279B.280,
279C.360, 279C.365, 279C.370, 279C.375, 279C.380, 279C.385, 279C.500 to
279C.530, 279C.540, 279C.545, 279C.550 to 279C.570, 279C.580, 279C.585,
279C.590, 279C.600 to 279C.625, 279C.650 to 279C.670 and 279C.800 to 279C.870
relating to public contracts and purchasing.
(11)(a) Except as provided in paragraph
(c) of this subsection, a rule is not valid unless adopted in substantial
compliance with the provisions of this section in effect on the date that the
notice required under subsection (1) of this section is delivered to the
Secretary of State for the purpose of publication in the bulletin referred to
in ORS 183.360.
(b) In addition to all other requirements
with which rule adoptions must comply, a rule is not valid if the rule has not
been submitted to the Legislative Counsel in the manner required by ORS
183.715.
(c) A rule is not subject to judicial
review or other challenge by reason of failing to comply with subsection
(2)(a)(A) of this section.
(12)(a) Notwithstanding the provisions of
subsection (11) of this section, but subject to paragraph (b) of this subsection,
an agency may correct its failure to substantially comply with the requirements
of subsections (2) and (5) of this section in adoption of a rule by an amended
filing, as long as the noncompliance did not substantially prejudice the
interests of persons to be affected by the rule.
(b) An agency may use an amended filing to
correct a failure to include a fiscal impact statement in a notice of intended
action, as required by subsection (2)(b)(E) of this section, or to correct an
inaccurate fiscal impact statement, only if the agency developed the fiscal
impact statement with the assistance of an advisory committee or fiscal impact
advisory committee appointed under ORS 183.333.
(13) Unless otherwise provided by statute,
the adoption, amendment or repeal of a rule by an agency need not be based upon
or supported by an evidentiary record.
(14) When an agency has established a
deadline for comment on a proposed rule under the provisions of subsection
(3)(a) of this section, the agency may not extend that deadline for another
agency or person unless the extension applies equally to all interested
agencies and persons. An agency shall not consider any submission made by
another agency after the final deadline has passed.
(15) The notices required under subsections
(1) and (3) of this section must be given by the agency to the following
persons:
(a) If the proposed adoption, amendment or
repeal results from legislation that was passed within two years before notice
is given under subsection (1) of this section, notice shall be given to the
legislator who introduced the bill that subsequently was enacted into law, and
to the chair or cochairs of all committees that reported the bill out, except
for those committees whose sole action on the bill was referral to another
committee.
(b) If the proposed adoption, amendment or
repeal does not result from legislation that was passed within two years before
notice is given under subsection (1) of this section, notice shall be given to
the chair or cochairs of any interim or session committee with authority over
the subject matter of the rule.
(c) If notice cannot be given under
paragraph (a) or (b) of this subsection, notice shall be given to the Speaker
of the House of Representatives and to the President of the Senate who are in
office on the date the notice is given.
(16)(a) Upon the request of a member of
the Legislative Assembly or of a person who would be affected by a proposed
adoption, amendment or repeal, the committees receiving notice under subsection
(15) of this section shall review the proposed adoption, amendment or repeal
for compliance with the legislation from which the proposed adoption, amendment
or repeal results.
(b) The committees shall submit their
comments on the proposed adoption, amendment or repeal to the agency proposing
the adoption, amendment or repeal. [1971 c.734 §3; 1973 c.612 §1; 1975 c.136 §11;
1975 c.759 §4; 1977 c.161 §1; 1977 c.344 §6; 1977 c.394 §1a; 1977 c.798 §2;
1979 c.593 §11; 1981 c.755 §2; 1987 c.861 §2; 1993 c.729 §3; 1995 c.652 §5;
1997 c.602 §3; 1999 c.123 §1; 1999 c.334 §1; 2001 c.220 §1; 2001 c.563 §1; 2003
c.749 §5; 2003 c.794 §206; 2005 c.17 §1; 2005 c.18 §1; 2005 c.382 §1; 2005
c.807 §5; 2007 c.115 §1; 2007 c.768 §58]
183.336
Cost of compliance effect on small businesses. (1) The statement of cost of compliance
effect on small businesses required by ORS 183.335 (2)(b)(E) must include:
(a) An estimate of the number of small
businesses subject to the proposed rule and identification of the types of
businesses and industries with small businesses subject to the proposed rule;
(b) A brief description of the projected
reporting, recordkeeping and other administrative activities required for
compliance with the proposed rule, including costs of professional services;
(c) An identification of equipment,
supplies, labor and increased administration required for compliance with the
proposed rule; and
(d) A description of the manner in which
the agency proposing the rule involved small businesses in the development of
the rule.
(2) An agency shall utilize available
information in complying with the requirements of this section. [2005 c.807 §2]
183.337
Procedure for agency adoption of federal rules. (1) Notwithstanding ORS 183.335, when an
agency is required to adopt rules or regulations promulgated by an agency of
the federal government and the agency has no authority to alter or amend the
content or language of those rules or regulations prior to their adoption, the
agency may adopt those rules or regulations under the procedure prescribed in
this section.
(2) Prior to the adoption of a federal
rule or regulation under subsection (1) of this section, the agency shall give
notice of the adoption of the rule or regulation, the effective date of the
rule or regulation in this state and the subject matter of the rule or
regulation in the manner established in ORS 183.335 (1).
(3) After giving notice the agency may
adopt the rule or regulation by filing a copy with the Secretary of State in
compliance with ORS 183.355. The agency is not required to conduct a public
hearing concerning the adoption of the rule or regulation.
(4) Nothing in this section authorizes an
agency to amend federal rules or regulations or adopt rules in accordance with
federal requirements without giving an opportunity for hearing as required by
ORS 183.335. [1979 c.593 §15]
183.340 [1957 c.717 §3 (3); 1971 c.734 §6; repealed
by 1975 c.759 §5 (183.341 enacted in lieu of 183.340)]
183.341
Model rules of procedure; establishment; compilation; publication; agencies
required to adopt procedural rules. (1) The Attorney General shall prepare model rules of procedure
appropriate for use by as many agencies as possible. Except as provided in ORS
183.630, any agency may adopt all or part of the model rules by reference
without complying with the rulemaking procedures under ORS 183.335. Notice of
such adoption shall be filed with the Secretary of State in the manner provided
by ORS 183.355 for the filing of rules. The model rules may be amended from
time to time by an adopting agency or the Attorney General after notice and
opportunity for hearing as required by rulemaking procedures under this
chapter.
(2) Except as provided in ORS 183.630, all
agencies shall adopt rules of procedure to be utilized in the adoption of rules
and conduct of proceedings in contested cases or, if exempt from the contested
case provisions of this chapter, for the conduct of proceedings.
(3) The Secretary of State shall publish
in the Oregon Administrative Rules:
(a) The Attorney Generals model rules
adopted under subsection (1) of this section;
(b) The procedural rules of all agencies
that have not adopted the Attorney Generals model rules; and
(c) The notice procedures required by ORS
183.335 (1).
(4) Agencies shall adopt rules of procedure
which will provide a reasonable opportunity for interested persons to be
notified of the agencys intention to adopt, amend or repeal a rule.
(5) No rule adopted after September 13,
1975, is valid unless adopted in substantial compliance with the rules adopted
pursuant to subsection (4) of this section. [1975 c.759 §6 (enacted in lieu of
183.340); 1979 c.593 §12; 1997 c.837 §1; 1999 c.849 §§24,25; 2003 c.75 §28]
183.350 [1957 c.717 §3 (1), (2); repealed by 1971
c.734 §21]
183.355
Filing and taking effect of rules; filing of executive orders; copies. (1)(a) Each agency shall file in the office
of the Secretary of State a certified copy of each rule adopted by it.
(b) Notwithstanding the provisions of
paragraph (a) of this subsection, an agency adopting a rule incorporating
published standards by reference is not required to file a copy of those
standards with the Secretary of State if:
(A) The standards adopted are unusually
voluminous and costly to reproduce; and
(B) The rule filed with the Secretary of
State identifies the location of the standards so incorporated and the
conditions of their availability to the public.
(2) Each rule is effective upon filing as
required by subsection (1) of this section, except that:
(a) If a later effective date is required
by statute or specified in the rule, the later date is the effective date.
(b) A temporary rule becomes effective
upon filing with the Secretary of State, or at a designated later date, only if
the statement required by ORS 183.335 (5) is filed with the rule. The agency
shall take appropriate measures to make temporary rules known to the persons
who may be affected by them.
(3) When a rule is amended or repealed by
an agency, the agency shall file a certified copy of the amendment or notice of
repeal with the Secretary of State who shall appropriately amend the
compilation required by ORS 183.360 (1).
(4) A certified copy of each executive
order issued, prescribed or promulgated by the Governor shall be filed in the
office of the Secretary of State.
(5) No rule of which a certified copy is
required to be filed shall be valid or effective against any person or party
until a certified copy is filed in accordance with this section. However, if an
agency, in disposing of a contested case, announces in its decision the
adoption of a general policy applicable to such case and subsequent cases of
like nature the agency may rely upon such decision in disposition of later
cases.
(6) The Secretary of State shall, upon
request, supply copies of rules, or orders or designated parts of rules or
orders, making and collecting therefor fees prescribed by ORS 177.130. All
receipts from the sale of copies shall be deposited in the State Treasury to
the credit of the Secretary of State Miscellaneous Receipts Account established
under ORS 279A.290. [1971 c.734 §5; 1973 c.612 §2; 1975 c.759 §7; 1977 c.798 §2b;
1979 c.593 §13; 1991 c.169 §2; 2003 c.794 §207]
183.360
Publication of rules and orders; exceptions; requirements; bulletin; judicial
notice; citation. (1) The
Secretary of State shall compile, index and publish all rules adopted by each
agency. The compilation shall be supplemented or revised as often as necessary
and at least once every six months. Such compilation supersedes any other
rules. The Secretary of State may make such compilations of other material
published in the bulletin as are desirable. The Secretary of State may
copyright the compilations prepared under this subsection, and may establish
policies for the revision, clarification, classification, arrangement,
indexing, printing, binding, publication, sale and distribution of the
compilations.
(2)(a) The Secretary of State has
discretion to omit from the compilation rules the publication of which would be
unduly cumbersome or expensive if the rule in printed or processed form is made
available on application to the adopting agency, and if the compilation
contains a notice summarizing the omitted rule and stating how a copy thereof
may be obtained. In preparing the compilation the Secretary of State shall not
alter the sense, meaning, effect or substance of any rule, but may renumber
sections and parts of sections of the rules, change the wording of headnotes,
rearrange sections, change reference numbers to agree with renumbered chapters,
sections or other parts, substitute the proper subsection, section or chapter
or other division numbers, change capitalization for the purpose of uniformity,
and correct manifest clerical or typographical errors.
(b) The Secretary of State may by rule
prescribe requirements, not inconsistent with law, for the manner and form for
filing of rules adopted or amended by agencies. The Secretary of State may
refuse to accept for filing any rules which do not comply with those
requirements.
(3) The Secretary of State shall publish
at least at monthly intervals a bulletin which:
(a) Briefly indicates the agencies that
are proposing to adopt, amend or repeal a rule, the subject matter of the rule
and the name, address and telephone number of an agency officer or employee
from whom information and a copy of any proposed rule may be obtained;
(b) Contains the text or a brief
description of all rules filed under ORS 183.355 since the last bulletin
indicating the effective date of the rule;
(c) Contains executive orders of the
Governor; and
(d) Contains orders issued by the Director
of the Department of Revenue under ORS 305.157 extending tax statutes of
limitation.
(4) Courts shall take judicial notice of
rules and executive orders filed with the Secretary of State.
(5) The compilation required by subsection
(1) of this section shall be titled Oregon Administrative Rules and may be
cited as OAR with appropriate numerical indications. [1957 c.717 §4
(1),(2),(3); 1961 c.464 §1; 1971 c.734 §7; 1973 c.612 §4; 1975 c.759 §7a; 1977
c.394 §2; 1979 c.593 §16; 1993 c.729 §13; 1995 c.79 §62; 2001 c.104 §63; 2003
c.168 §3]
183.362
Program for biennial publication of
(2) Except as provided in subsection (3)
of this section, upon implementing a program under this section the Secretary
of State shall require that an agency submit the full text of the proposed rule
in addition to information required to be published under the provisions of ORS
183.335 (1). Except as provided in subsection (3) of this section, the
Secretary of State shall publish the full text of the proposed rule in the
bulletin referred to in ORS 183.360.
(3) The Secretary of State may waive the
submission of the full text of a proposed administrative rule and decline to
publish the full text of the proposed rule in the bulletin referred to in ORS
183.360 if:
(a) The proposed rule is unusually voluminous;
and
(b) In addition to the information
provided by the agency under the provisions of ORS 183.335 (2) the agency
identifies a location where the rule is available for inspection and copying.
(4) If the adopted rule submitted to the
Secretary of State under the provisions of ORS 183.355 is different from the
proposed rule submitted to the Secretary of State under a program implemented
under this section, the Secretary of State shall publish in the bulletin
referred to in ORS 183.360 either the full text of the rule as adopted or a
list of the changes made in the proposed rule before the agency adopted the
rule. [1993 c.729 §12]
Note: 183.362 was added to and made a part of ORS
chapter 183 by legislative action but was not added to any smaller series therein.
See Preface to Oregon Revised Statutes for further explanation.
183.365
Publication of administrative rules in electronic form. (1) Pursuant to ORS 183.360, the Secretary
of State shall publish in electronic form administrative rules adopted or amended
by state agencies and make the information available to the public and members
of the Legislative Assembly.
(2) The Secretary of State shall determine
the most cost-effective format and procedures for the timely release of the
information described in subsection (1) of this section in electronic form.
(3) Pursuant to ORS 183.360 (2)(b), the
Secretary of State shall establish requirements for filing administrative rules
adopted or amended by state agencies for entry into computer networks for the purpose
of subsection (1) of this section.
(4) Although each state agency is
responsible for its information resources, centralized information resource
management must also exist to:
(a) Provide public access to the
information described in subsection (1) of this section;
(b) Provide technical assistance to state
agencies; and
(c) Ensure that the information resources
needed to implement subsection (1) of this section are addressed along with the
needs of the individual agencies.
(5) Personal information concerning a
person who accesses the information identified in subsection (1) of this
section may be maintained only for the purpose of providing service to the
person.
(6) No fee or other charge may be imposed
by the Secretary of State as a condition of accessing the information
identified in subsection (1) of this section.
(7) No action taken pursuant to this
section shall be deemed to alter or relinquish any copyright or other
proprietary interest or entitlement of the State of
Note: 183.365 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 183 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
183.370
Distribution of published rules. The bulletins and compilations may be distributed by the Secretary of
State free of charge as provided for the distribution of legislative materials
referred to in ORS 171.236. Other copies of the bulletins and compilations
shall be distributed by the Secretary of State at a cost determined by the
Secretary of State. Any agency may compile and publish its rules or all or part
of its rules for purpose of distribution outside of the agency only after it
proves to the satisfaction of the Secretary of State that agency publication is
necessary. [1957 c.717 §4(4); 1959 c.260 §1; 1969 c.174 §4; 1975 c.759 §8; 1977
c.394 §3]
183.380 [1957 c.717 §4 (5); repealed by 1971 c.734 §21]
183.390
Petitions requesting adoption of rules. (1) An interested person may petition an agency requesting the
promulgation, amendment or repeal of a rule. The Attorney General shall
prescribe by rule the form for such petitions and the procedure for their
submission, consideration and disposition. Not later than 90 days after the
date of submission of a petition, the agency either shall deny the petition in
writing or shall initiate rulemaking proceedings in accordance with ORS
183.335.
(2) If a petition requesting the amendment
or repeal of a rule is submitted to an agency under this section, the agency
shall invite public comment upon the rule, and shall specifically request
public comment on whether options exist for achieving the rules substantive
goals in a way that reduces the negative economic impact on businesses.
(3) In reviewing a petition subject to
subsection (2) of this section, the agency shall consider:
(a) The continued need for the rule;
(b) The nature of complaints or comments
received concerning the rule from the public;
(c) The complexity of the rule;
(d) The extent to which the rule overlaps,
duplicates or conflicts with other state rules or federal regulations and, to
the extent feasible, with local government regulations;
(e) The degree to which technology,
economic conditions or other factors have changed in the subject area affected
by the rule; and
(f) The statutory citation or legal basis
for the rule. [1957 c.717 §5; 1971 c.734 §8; 2003 c.749 §6]
183.400
Judicial determination of validity of rule. (1) The validity of any rule may be determined upon a petition by any
person to the Court of Appeals in the manner provided for review of orders in
contested cases. The court shall have jurisdiction to review the validity of
the rule whether or not the petitioner has first requested the agency to pass
upon the validity of the rule in question, but not when the petitioner is a
party to an order or a contested case in which the validity of the rule may be
determined by a court.
(2) The validity of any applicable rule
may also be determined by a court, upon review of an order in any manner
provided by law or pursuant to ORS 183.480 or upon enforcement of such rule or
order in the manner provided by law.
(3) Judicial review of a rule shall be
limited to an examination of:
(a) The rule under review;
(b) The statutory provisions authorizing
the rule; and
(c) Copies of all documents necessary to
demonstrate compliance with applicable rulemaking procedures.
(4) The court shall declare the rule
invalid only if it finds that the rule:
(a) Violates constitutional provisions;
(b) Exceeds the statutory authority of the
agency; or
(c) Was adopted without compliance with
applicable rulemaking procedures.
(5) In the case of disputed allegations of
irregularities in procedure which, if proved, would warrant reversal or remand,
the Court of Appeals may refer the allegations to a master appointed by the
court to take evidence and make findings of fact. The courts review of the
masters findings of fact shall be de novo on the evidence.
(6) The court shall not declare a rule
invalid solely because it was adopted without compliance with applicable
rulemaking procedures after a period of two years after the date the rule was
filed in the office of the Secretary of State, if the agency attempted to
comply with those procedures and its failure to do so did not substantially
prejudice the interests of the parties. [1957 c.717 §6; 1971 c.734 §9; 1975
c.759 §9; 1979 c.593 §17; 1987 c.861 §3]
183.405
Agency review of rules. (1)
Not later than five years after adopting a rule, an agency shall review the
rule for the purpose of determining:
(a) Whether the rule has had the intended
effect;
(b) Whether the anticipated fiscal impact
of the rule was underestimated or overestimated;
(c) Whether subsequent changes in the law
require that the rule be repealed or amended; and
(d) Whether there is continued need for
the rule.
(2) An agency shall utilize available
information in complying with the requirements of subsection (1) of this
section.
(3) If an agency appoints an advisory
committee pursuant to ORS 183.333 for consideration of a rule subject to the
requirements of this section, the agency shall provide the advisory committee
with a report on a review of the rule conducted under this section.
(4) The provisions of this section do not
apply to the amendment or repeal of a rule.
(5) The provisions of this section do not
apply to:
(a) Rules adopted to implement court orders
or the settlement of civil proceedings;
(b) Rules that adopt federal laws or rules
by reference;
(c) Rules adopted to implement
legislatively approved fee changes; or
(d) Rules adopted to correct errors or
omissions. [2005 c.807 §3]
Note: 183.405 was added to and made a part of
183.325 to 183.410 by legislative action but was not added to any smaller
series therein. See Preface to Oregon Revised Statutes for further explanation.
183.410
Agency determination of applicability of rule or statute to petitioner; effect;
judicial review. On petition
of any interested person, any agency may in its discretion issue a declaratory
ruling with respect to the applicability to any person, property, or state of
facts of any rule or statute enforceable by it. A declaratory ruling is binding
between the agency and the petitioner on the state of facts alleged, unless it
is altered or set aside by a court. However, the agency may, where the ruling
is adverse to the petitioner, review the ruling and alter it if requested by
the petitioner. Binding rulings provided by this section are subject to review
in the Court of Appeals in the manner provided in ORS 183.480 for the review of
orders in contested cases. The Attorney General shall prescribe by rule the
form for such petitions and the procedure for their submission, consideration
and disposition. The petitioner shall have the right to submit briefs and
present oral argument at any declaratory ruling proceeding held pursuant to
this section. [1957 c.717 §7; 1971 c.734 §10; 1973 c.612 §5]
(Contested
Cases)
183.411
Delegation of final order authority. Unless otherwise provided by law, an agency may delegate authority to
enter a final order in a proceeding or class of proceedings to an officer or
employee of the agency, or to a class of officers or employees of the agency. A
delegation of authority under this section must be made in writing before the
issuance of any order pursuant to the delegation and must be retained in the
agencys records. [2007 c.116 §2]
Note: 183.411 was added to and made a part of ORS
chapter 183 by legislative action but was not added to any smaller series
therein. See Preface to Oregon Revised Statutes for further explanation.
183.413
Notice to parties before hearing of rights and procedure; failure to provide
notice. (1) The Legislative
Assembly finds that parties to a contested case hearing have a right to be
informed as to the procedures by which contested cases are heard by state
agencies, their rights in hearings before state agencies, the import and effect
of hearings before state agencies and their rights and remedies with respect to
actions taken by state agencies. Accordingly, it is the purpose of subsections
(2) and (3) of this section to set forth certain requirements of state agencies
so that parties to contested case hearings shall be fully informed as to these
matters when exercising their rights before state agencies.
(2) Prior to the commencement of a
contested case hearing before any agency including those agencies identified in
ORS 183.315, the agency shall serve personally or by mail a written notice to
each party to the hearing that includes the following:
(a) The time and place of the hearing.
(b) A statement of the authority and
jurisdiction under which the hearing is to be held.
(c) A statement that generally identifies
the issues to be considered at the hearing.
(d) A statement indicating that the party
may be represented by counsel and that legal aid organizations may be able to
assist a party with limited financial resources.
(e) A statement that the party has the
right to respond to all issues properly before the presiding officer and
present evidence and witnesses on those issues.
(f) A statement indicating whether
discovery is permitted and, if so, how discovery may be requested.
(g) A general description of the hearing
procedure including the order of presentation of evidence, what kinds of
evidence are admissible, whether objections may be made to the introduction of
evidence and what kind of objections may be made and an explanation of the
burdens of proof or burdens of going forward with the evidence.
(h) Whether a record will be made of the
proceedings and the manner of making the record and its availability to the
parties.
(i) The function of the record-making with
respect to the perpetuation of the testimony and evidence and with respect to
any appeal from the determination or order of the agency.
(j) Whether an attorney will represent the
agency in the matters to be heard and whether the parties ordinarily and
customarily are represented by an attorney.
(k) The title and function of the person
presiding at the hearing with respect to the decision process, including, but
not limited to, the manner in which the testimony and evidence taken by the
person presiding at the hearing are reviewed, the effect of that persons
determination, who makes the final determination on behalf of the agency,
whether the person presiding at the hearing is or is not an employee, officer
or other representative of the agency and whether that person has the authority
to make a final independent determination.
(L) In the event a party is not
represented by an attorney, whether the party may during the course of
proceedings request a recess if at that point the party determines that
representation by an attorney is necessary to the protection of the partys
rights.
(m) Whether there exists an opportunity
for an adjournment at the end of the hearing if the party then determines that
additional evidence should be brought to the attention of the agency and the
hearing reopened.
(n) Whether there exists an opportunity
after the hearing and prior to the final determination or order of the agency
to review and object to any proposed findings of fact, conclusions of law,
summary of evidence or recommendations of the officer presiding at the hearing.
(o) A description of the appeal process
from the determination or order of the agency.
(3) The failure of an agency to give
notice of any item specified in subsection (2) of this section does not
invalidate any determination or order of the agency unless upon an appeal from
or review of the determination or order a court finds that the failure affects
the substantial rights of the complaining party. In the event of such a
finding, the court shall remand the matter to the agency for a reopening of the
hearing and shall direct the agency as to what steps it shall take to remedy
the prejudice to the rights of the complaining party. [1979 c.593 §§37,38,39;
1995 c.79 §63; 2007 c.288 §1]
Note: See note under 183.417.
183.415
Notice of right to hearing.
(1) The Legislative Assembly finds that persons affected by actions taken by
state agencies have a right to be informed of their rights and remedies with
respect to the actions.
(2) In a contested case, all parties shall
be afforded an opportunity for hearing after reasonable notice, served
personally or by registered or certified mail.
(3) Notice under this section must
include:
(a) A statement of the partys right to
hearing, with a description of the procedure and time to request a hearing, or
a statement of the time and place of the hearing;
(b) A statement of the authority and
jurisdiction under which the hearing is to be held;
(c) A reference to the particular sections
of the statutes and rules involved;
(d) A short and plain statement of the
matters asserted or charged; and
(e) A statement indicating whether and
under what circumstances an order by default may be entered. [1971 c.734 §13;
1979 c.593 §18; 1985 c.757 §1; 1997 c.837 §2; 1999 c.849 §§27,28; 2003 c.75 §29;
2007 c.288 §2]
Note: See note under 183.417.
183.417
Procedure in contested case hearing. (1) In a contested case proceeding, the parties may elect to be
represented by counsel and to respond and present evidence and argument on all
issues properly before the presiding officer in the proceeding.
(2) Agencies may adopt rules of procedure
governing participation in contested case proceedings by persons appearing as
limited parties.
(3)(a) Unless prohibited by law, informal
disposition may be made of any contested case by stipulation, agreed
settlement, consent order or default. Informal settlement may be made in
license revocation proceedings by written agreement of the parties and the
agency consenting to a suspension, fine or other form of intermediate sanction.
(b) Any informal disposition of a
contested case, other than an informal disposition by default, must be in
writing and signed by the party or parties to the contested case. The agency
shall incorporate that disposition into a final order. An order under this
paragraph is not subject to ORS 183.470. The agency shall deliver or mail a
copy of the order to each party and to the attorney of record if the party is
represented. An order that incorporates the informal disposition is a final
order in a contested case, but is not subject to judicial review. A party may
petition the agency to set aside a final order that incorporates the informal
disposition on the ground that the informal disposition was obtained by fraud
or duress.
(4) An order adverse to a party may be
issued upon default only if a prima facie case is made on the record. The
record on a default order includes all materials submitted by the party. The
record on a default order may be made at the time of issuance of the order. If
the record on the default order consists solely of an application and other
materials submitted by the party, the agency shall so note in the order.
(5) At the commencement of a contested
case hearing, the officer presiding at the hearing shall explain the issues
involved in the hearing and the matters that the parties must either prove or
disprove.
(6) Testimony at a contested case hearing
shall be taken upon oath or affirmation of the witness. The officer presiding
at the hearing shall administer oaths or affirmations to witnesses.
(7) The officer presiding at the hearing
shall place on the record a statement of the substance of any written or oral
ex parte communication on a fact in issue made to the officer during the
pendency of the proceeding and notify the parties of the communication and of
their right to rebut the communication. If an ex parte communication is made to
an administrative law judge assigned from the Office of Administrative Hearings
established under ORS 183.605, the administrative law judge must comply with
ORS 183.685.
(8) The officer presiding at the hearing
shall ensure that the record developed at the hearing shows a full and fair
inquiry into the facts necessary for consideration of all issues properly
before the presiding officer in the case and the correct application of the law
to those facts.
(9) The record in a contested case shall
include:
(a) All pleadings, motions and
intermediate rulings.
(b) Evidence received or considered.
(c) Stipulations.
(d) A statement of matters officially
noticed.
(e) Questions and offers of proof,
objections and rulings thereon.
(f) A statement of any ex parte
communication that must be disclosed under subsection (7) of this section and
that was made to the officer presiding at the hearing.
(g) Proposed findings and exceptions.
(h) Any proposed, intermediate or final
order prepared by the agency or an administrative law judge.
(10) A verbatim oral, written or
mechanical record shall be made of all motions, rulings and testimony in a
contested case proceeding. The record need not be transcribed unless requested
for purposes of rehearing or court review. The agency may charge the party
requesting transcription the cost of a copy of transcription, unless the party files
an appropriate affidavit of indigency. Upon petition, a court having
jurisdiction to review under ORS 183.480 may reduce or eliminate the charge
upon finding that it is equitable to do so, or that matters of general interest
would be determined by review of the order of the agency. [2007 c.288 §4]
Note: Section 19, chapter 288, Oregon Laws 2007,
provides:
Sec.
19. Section 4 of this 2007
Act [ORS 183.417] and the amendments to ORS 35.520, 58.355, 161.346, 181.661,
183.310, 183.315, 183.413, 183.415, 183.480, 279B.425, 279C.450, 351.088,
352.360, 701.145, 776.129 and 813.410 by sections 1, 2 and 5 to 18 of this 2007
Act apply only to contested case proceedings commenced by the giving of notice
as described in ORS 183.415 on or after the effective date of this 2007 Act
[January 1, 2008]. Any contested case proceeding commenced by the giving of
notice as described in ORS 183.415 before the effective date of this 2007 Act
shall continue to be governed by ORS 35.520, 58.355, 161.346, 181.661, 183.310,
183.315, 183.413, 183.415, 183.480, 279B.425, 279C.450, 351.088, 352.360,
701.145, 776.129 and 813.410, as in effect immediately before the effective
date of this 2007 Act. [2007 c.288 §19]
183.418 [1973 c.386 §6; 1989 c.224 §11; 1991 c.750 §5;
repealed by 1999 c.1041 §9]
183.420 [1957 c.717 §8 (1); repealed by 1971 c.734 §21]
183.421 [1991 c.750 §4; repealed by 1999 c.1041 §9]
183.425
Depositions or subpoena of material witness; discovery. (1) On petition of any party to a contested
case, or upon the agencys own motion, the agency may order that the testimony
of any material witness may be taken by deposition in the manner prescribed by
law for depositions in civil actions. Depositions may also be taken by the use
of audio or audio-visual recordings. The petition shall set forth the name and
address of the witness whose testimony is desired, a showing of the materiality
of the testimony of the witness, and a request for an order that the testimony
of such witness be taken before an officer named in the petition for that
purpose. If the witness resides in this state and is unwilling to appear, the
agency may issue a subpoena as provided in ORS 183.440, requiring the
appearance of the witness before such officer.
(2) An agency may, by rule, prescribe other
methods of discovery which may be used in proceedings before the agency. [1971
c.734 §14; 1975 c.759 §11; 1979 c.593 §19; 1997 c.837 §6]
183.430
Hearing on refusal to renew license; exceptions. (1) In the case of any license which must be
periodically renewed, where the licensee has made timely application for
renewal in accordance with the rules of the agency, such license shall not be
deemed to expire, despite any stated expiration date thereon, until the agency
concerned has issued a formal order of grant or denial of such renewal. In case
an agency proposes to refuse to renew such license, upon demand of the
licensee, the agency must grant hearing as provided by this chapter before
issuance of order of refusal to renew. This subsection does not apply to any
emergency or temporary permit or license.
(2) In any case where the agency finds a
serious danger to the public health or safety and sets forth specific reasons
for such findings, the agency may suspend or refuse to renew a license without
hearing, but if the licensee demands a hearing within 90 days after the date of
notice to the licensee of such suspension or refusal to renew, then a hearing
must be granted to the licensee as soon as practicable after such demand, and
the agency shall issue an order pursuant to such hearing as required by this
chapter confirming, altering or revoking its earlier order. Such a hearing need
not be held where the order of suspension or refusal to renew is accompanied by
or is pursuant to, a citation for violation which is subject to judicial
determination in any court of this state, and the order by its terms will
terminate in case of final judgment in favor of the licensee. [1957 c.717 §8
(3), (4); 1965 c.212 §1; 1971 c.734 §11]
183.435
Period allowed to request hearing for license refusal on grounds other than test
or inspection results. When
an agency refuses to issue a license required to pursue any commercial
activity, trade, occupation or profession if the refusal is based on grounds
other than the results of a test or inspection that agency shall grant the
person requesting the license 60 days from notification of the refusal to
request a hearing. [Formerly 670.285]
183.440
Subpoenas in contested cases.
(1) An agency may issue subpoenas on its own motion in a contested case. In
addition, an agency or hearing officer in a contested case may issue subpoenas
upon the request of a party to a contested case upon a showing of general
relevance and reasonable scope of the evidence sought. A party entitled to have
witnesses on behalf of the party may have subpoenas issued by an attorney of
record of the party, subscribed by the signature of the attorney. Witnesses
appearing pursuant to subpoena, other than the parties or officers or employees
of the agency, shall receive fees and mileage as prescribed by law for
witnesses in ORS 44.415 (2).
(2) If any person fails to comply with any
subpoena so issued or any party or witness refuses to testify on any matters on
which the party or witness may be lawfully interrogated, the judge of the
circuit court of any county, on the application of the hearing officer, the
agency or the party requesting the issuance of or issuing the subpoena, shall
compel obedience by proceedings for contempt as in the case of disobedience of
the requirements of a subpoena issued from such court or a refusal to testify
therein. [1957 c.717 §8 (2); 1971 c.734 §12; 1979 c.593 §20; 1981 c.174 §4;
1989 c.980 §10a; 1997 c.837 §3; 1999 c.849 §30]
183.445
Subpoena by agency or attorney of record of party when agency not subject to
ORS 183.440. (1) In any
proceeding before an agency not subject to ORS 183.440 in which a party is
entitled to have subpoenas issued for the appearance of witnesses on behalf of
the party, a subpoena may be issued by an attorney of record of the party,
subscribed by the signature of the attorney. A subpoena issued by an attorney
of record may be enforced in the same manner as a subpoena issued by the
agency.
(2) In any proceeding before an agency not
subject to ORS 183.440 in which a party is entitled to have subpoenas issued by
the agency to compel the appearance of witnesses on behalf of the party, the
agency may issue subpoenas on its own motion. [1981 c.174 §6; 1997 c.837 §4;
1999 c.849 §32]
183.450
Evidence in contested cases.
In contested cases:
(1) Irrelevant, immaterial or unduly
repetitious evidence shall be excluded but erroneous rulings on evidence shall
not preclude agency action on the record unless shown to have substantially
prejudiced the rights of a party. All other evidence of a type commonly relied
upon by reasonably prudent persons in conduct of their serious affairs shall be
admissible. Agencies and hearing officers shall give effect to the rules of
privilege recognized by law. Objections to evidentiary offers may be made and
shall be noted in the record. Any part of the evidence may be received in
written form.
(2) All evidence shall be offered and made
a part of the record in the case, and except for matters stipulated to and
except as provided in subsection (4) of this section no other factual
information or evidence shall be considered in the determination of the case.
Documentary evidence may be received in the form of copies or excerpts, or by
incorporation by reference. The burden of presenting evidence to support a fact
or position in a contested case rests on the proponent of the fact or position.
(3) Every party shall have the right of
cross-examination of witnesses who testify and shall have the right to submit
rebuttal evidence. Persons appearing in a limited party status shall
participate in the manner and to the extent prescribed by rule of the agency.
(4) The hearing officer and agency may
take notice of judicially cognizable facts, and may take official notice of
general, technical or scientific facts within the specialized knowledge of the
hearing officer or agency. Parties shall be notified at any time during the
proceeding but in any event prior to the final decision of material officially
noticed and they shall be afforded an opportunity to contest the facts so
noticed. The hearing officer and agency may utilize the hearing officers or
agencys experience, technical competence and specialized knowledge in the
evaluation of the evidence presented.
(5) No sanction shall be imposed or order
be issued except upon consideration of the whole record or such portions
thereof as may be cited by any party, and as supported by, and in accordance
with, reliable, probative and substantial evidence. [1957 c.717 §9; 1971 c.734 §15;
1975 c.759 §12; 1977 c.798 §3; 1979 c.593 §21; 1987 c.833 §1; 1995 c.272 §5;
1997 c.391 §1; 1997 c.801 §76; 1999 c.448 §5; 1999 c.849 §34]
183.452
Representation of agencies at contested case hearings. (1) Agencies may, at their discretion, be
represented at contested case hearings by the Attorney General.
(2) Notwithstanding ORS 9.160, 9.320 and
ORS chapter 180, and unless otherwise authorized by another law, an agency may
be represented at contested case hearings by an officer or employee of the
agency if:
(a) The Attorney General has consented to
the representation of the agency by an agency representative in the particular
hearing or in the class of hearings that includes the particular hearing; and
(b) The agency, by rule, has authorized an
agency representative to appear on its behalf in the particular type of hearing
being conducted.
(3) An agency representative acting under
the provisions of this section may not give legal advice to an agency, and may
not present legal argument in contested case hearings, except to the extent
authorized by subsection (4) of this section.
(4) The officer presiding at a contested
case hearing in which an agency representative appears under the provisions of
this section may allow the agency representative to present evidence, examine
and cross-examine witnesses, and make arguments relating to the:
(a) Application of statutes and rules to
the facts in the contested case;
(b) Actions taken by the agency in the
past in similar situations;
(c) Literal meaning of the statutes or
rules at issue in the contested case;
(d) Admissibility of evidence; and
(e) Proper procedures to be used in the
contested case hearing.
(5) Upon judicial review, no limitation
imposed under this section on an agency representative is the basis for
reversal or remand of agency action unless the limitation resulted in
substantial prejudice to a party.
(6) The Attorney General may prepare model
rules for agency representatives authorized under this section. [1999 c.448 §3]
Note: 183.452 was added to and made a part of
183.413 to 183.470 by legislative action but was not added to any other series.
See Preface to Oregon Revised Statutes for further explanation.
183.455 [1987 c.259 §3; repealed by 1999 c.448 §10]
183.457
Representation of persons other than agencies participating in contested case
hearings. (1)
Notwithstanding ORS 8.690, 9.160 and 9.320, and unless otherwise authorized by
another law, a person participating in a contested case hearing conducted by an
agency described in this subsection may be represented by an attorney or by an
authorized representative subject to the provisions of subsection (2) of this
section. The Attorney General shall prepare model rules for proceedings with
lay representation that do not have the effect of precluding lay representation.
No rule adopted by a state agency shall have the effect of precluding lay
representation. The agencies before which an authorized representative may
appear are:
(a) The State Landscape Contractors Board
in the administration of the Landscape Contractors Law.
(b) The State Department of Energy and the
Energy Facility Siting Council.
(c) The Environmental Quality Commission
and the Department of Environmental Quality.
(d) The Department of Consumer and
Business Services for proceedings in which an insured appears pursuant to ORS
737.505.
(e) The Department of Consumer and
Business Services and any other agency for the purpose of proceedings to
enforce the state building code, as defined by ORS 455.010.
(f) The State Fire Marshal in the Department
of State Police.
(g) The Department of State Lands for
proceedings regarding the issuance or denial of fill or removal permits under
ORS 196.800 to 196.825.
(h) The Public Utility Commission.
(i) The Water Resources Commission and the
Water Resources Department.
(j) The Land Conservation and Development
Commission and the Department of Land Conservation and Development.
(k) The State Department of Agriculture,
for purposes of hearings under ORS 215.705.
(L) The Bureau of Labor and Industries.
(2) A person participating in a contested
case hearing as provided in subsection (1) of this section may appear by an
authorized representative if:
(a) The agency conducting the contested
case hearing has determined that appearance of such a person by an authorized
representative will not hinder the orderly and timely development of the record
in the type of contested case hearing being conducted;
(b) The agency conducting the contested
case hearing allows, by rule, authorized representatives to appear on behalf of
such participants in the type of contested case hearing being conducted; and
(c) The officer presiding at the contested
case hearing may exercise discretion to limit an authorized representatives
presentation of evidence, examination and cross-examination of witnesses, or
presentation of factual arguments to ensure the orderly and timely development
of the hearing record, and shall not allow an authorized representative to
present legal arguments except to the extent authorized under subsection (3) of
this section.
(3) The officer presiding at a contested
case hearing in which an authorized representative appears under the provisions
of this section may allow the authorized representative to present evidence,
examine and cross-examine witnesses, and make arguments relating to the:
(a) Application of statutes and rules to
the facts in the contested case;
(b) Actions taken by the agency in the
past in similar situations;
(c) Literal meaning of the statutes or
rules at issue in the contested case;
(d) Admissibility of evidence; and
(e) Proper procedures to be used in the
contested case hearing.
(4) Upon judicial review, no limitation
imposed by an agency presiding officer on the participation of an authorized
representative shall be the basis for reversal or remand of agency action
unless the limitation resulted in substantial prejudice to a person entitled to
judicial review of the agency action.
(5) For the purposes of this section, authorized
representative means a member of a participating partnership, an authorized
officer or regular employee of a participating corporation, association or
organized group, or an authorized officer or employee of a participating
governmental authority other than a state agency. [1987 c.833 §3; 1989 c.453 §2;
1993 c.186 §4; 1995 c.102 §1; 1999 c.448 §1; 1999 c.599 §1]
Note: 183.457 was added to and made a part of
183.413 to 183.470 by legislative action but was not added to any other series.
See Preface to Oregon Revised Statutes for further explanation.
183.458
Nonattorney representation of parties in certain contested case hearings. (1) Notwithstanding any other provision of
law, in any contested case hearing before a state agency involving child
support or public assistance as defined in ORS 411.010, a party may be
represented by any of the following persons:
(a) An authorized representative who is an
employee of a nonprofit legal services program that receives funding pursuant
to ORS 9.572. The authorized representative must be supervised by an attorney
also employed by a legal services program.
(b) An authorized representative who is an
employee of the system described in ORS 192.517 (1). The authorized
representative must be supervised by an attorney also employed by the system.
(2) In any contested case hearing before a
state agency involving child support, a party may be represented by a law
student who is:
(a) Handling the child support matter as
part of a law school clinical program in which the student is enrolled; and
(b) Supervised by an attorney employed by
the program.
(3) A person authorized to represent a
party under this section may present evidence in the proceeding, examine and
cross-examine witnesses and present factual and legal arguments in the
proceeding. [1999 c.448 §4; 2003 c.14 §86; 2005 c.498 §6]
Note: 183.458 was added to and made a part of
183.413 to 183.470 by legislative action but was not added to any other series.
See Preface to Oregon Revised Statutes for further explanation.
183.460
Examination of evidence by agency. Whenever in a contested case a majority of the officials of the agency
who are to render the final order have not heard the case or considered the
record, the order, if adverse to a party other than the agency itself, shall
not be made until a proposed order, including findings of fact and conclusions
of law, has been served upon the parties and an opportunity has been afforded
to each party adversely affected to file exceptions and present argument to the
officials who are to render the decision. [1957 c.717 §10; 1971 c.734 §16; 1975
c.759 §13]
183.462
Agency statement of ex parte communications; notice. The agency shall place on the record a
statement of the substance of any written or oral ex parte communications on a
fact in issue made to the agency during its review of a contested case. The
agency shall notify all parties of such communications and of their right to
rebut the substance of the ex parte communications on the record. [1979 c.593 §36c]
183.464
Proposed order by hearing officer; amendment by agency; exemptions. (1) Except as otherwise provided in
subsections (1) to (4) of this section, unless a hearing officer is authorized
or required by law or agency rule to issue a final order, the hearing officer
shall prepare and serve on the agency and all parties to a contested case
hearing a proposed order, including recommended findings of fact and
conclusions of law. The proposed order shall become final after the 30th day
following the date of service of the proposed order, unless the agency within
that period issues an amended order.
(2) An agency may by rule specify a period
of time after which a proposed order will become final that is different from
that specified in subsection (1) of this section.
(3) If an agency determines that additional
time will be necessary to allow the agency adequately to review a proposed
order in a contested case, the agency may extend the time after which the
proposed order will become final by a specified period of time. The agency
shall notify the parties to the hearing of the period of extension.
(4) Subsections (1) to (4) of this section
do not apply to the Public Utility Commission or the Energy Facility Siting
Council.
(5) The Governor may exempt any agency or
any class of contested case hearings before an agency from the requirements in
whole or part of subsections (1) to (4) of this section by executive order. The
executive order shall contain a statement of the reasons for the exemption. [1979
c.593 §§36,36b; 1995 c.79 §64; 2001 c.104 §64]
183.470
Orders in contested cases.
In a contested case:
(1) Every order adverse to a party to the
proceeding shall be in writing or stated in the record and may be accompanied
by an opinion.
(2) A final order shall be accompanied by
findings of fact and conclusions of law. The findings of fact shall consist of
a concise statement of the underlying facts supporting the findings as to each
contested issue of fact and as to each ultimate fact required to support the
agencys order.
(3) The agency shall notify the parties to
a proceeding of a final order by delivering or mailing a copy of the order and
any accompanying findings and conclusions to each party or, if applicable, the
partys attorney of record.
(4) Every final order shall include a
citation of the statutes under which the order may be appealed. [1957 c.717 §11;
1971 c.734 §17; 1979 c.593 §22]
(Judicial
Review)
183.480
Judicial review of agency orders. (1) Except as provided in ORS 183.417 (3)(b), any person adversely
affected or aggrieved by an order or any party to an agency proceeding is
entitled to judicial review of a final order, whether such order is affirmative
or negative in form. A petition for rehearing or reconsideration need not be
filed as a condition of judicial review unless specifically otherwise provided
by statute or agency rule.
(2) Judicial review of final orders of
agencies shall be solely as provided by ORS 183.482, 183.484, 183.490 and
183.500.
(3) No action or suit shall be maintained
as to the validity of any agency order except a final order as provided in this
section and ORS 183.482, 183.484, 183.490 and 183.500 or except upon showing
that the agency is proceeding without probable cause, or that the party will
suffer substantial and irreparable harm if interlocutory relief is not granted.
(4) Judicial review of orders issued
pursuant to ORS 813.410 shall be as provided by ORS 813.410. [1957 c.717 §12;
1963 c.449 §1; 1971 c.734 §18; 1975 c.759 §14; 1979 c.593 §23; 1983 c.338 §901;
1985 c.757 §4; 1997 c.837 §5; 2007 c.288 §11]
Note: See note under 183.417.
183.482
Jurisdiction for review of contested cases; procedure; scope of court
authority. (1) Jurisdiction
for judicial review of contested cases is conferred upon the Court of Appeals.
Proceedings for review shall be instituted by filing a petition in the Court of
Appeals. The petition shall be filed within 60 days only following the date the
order upon which the petition is based is served unless otherwise provided by
statute. If a petition for rehearing has been filed, then the petition for
review shall be filed within 60 days only following the date the order denying
the petition for rehearing is served. If the agency does not otherwise act, a
petition for rehearing or reconsideration shall be deemed denied the 60th day
following the date the petition was filed, and in such cases, petition for
judicial review shall be filed within 60 days only following such date. Date of
service shall be the date on which the agency delivered or mailed its order in
accordance with ORS 183.470.
(2) The petition shall state the nature of
the order the petitioner desires reviewed, and shall state whether the
petitioner was a party to the administrative proceeding, was denied status as a
party or is seeking judicial review as a person adversely affected or aggrieved
by the agency order. In the latter case, the petitioner shall, by supporting
affidavit, state the facts showing how the petitioner is adversely affected or
aggrieved by the agency order. Before deciding the issues raised by the petition
for review, the Court of Appeals shall decide, from facts set forth in the
affidavit, whether or not the petitioner is entitled to petition as an
adversely affected or an aggrieved person. Copies of the petition shall be
served by registered or certified mail upon the agency, and all other parties
of record in the agency proceeding.
(3)(a) The filing of the petition shall
not stay enforcement of the agency order, but the agency may do so upon a
showing of:
(A) Irreparable injury to the petitioner;
and
(B) A colorable claim of error in the
order.
(b) When a petitioner makes the showing
required by paragraph (a) of this subsection, the agency shall grant the stay
unless the agency determines that substantial public harm will result if the
order is stayed. If the agency denies the stay, the denial shall be in writing
and shall specifically state the substantial public harm that would result from
the granting of the stay.
(c) When the agency grants a stay, the
agency may impose such reasonable conditions as the giving of a bond,
irrevocable letter of credit or other undertaking and that the petitioner file
all documents necessary to bring the matter to issue before the Court of
Appeals within specified reasonable periods of time.
(d) Agency denial of a motion for stay is
subject to review by the Court of Appeals under such rules as the court may
establish.
(4) Within 30 days after service of the
petition, or within such further time as the court may allow, the agency shall
transmit to the reviewing court the original or a certified copy of the entire
record of the proceeding under review, but, by stipulation of all parties to
the review proceeding, the record may be shortened. Any party unreasonably
refusing to stipulate to limit the record may be taxed by the court for the
additional costs. The court may require or permit subsequent corrections or
additions to the record when deemed desirable. Except as specifically provided
in this subsection, the cost of the record shall not be taxed to the petitioner
or any intervening party. However, the court may tax such costs and the cost of
agency transcription of record to a party filing a frivolous petition for
review.
(5) If, on review of a contested case,
before the date set for hearing, application is made to the court for leave to
present additional evidence, and it is shown to the satisfaction of the court
that the additional evidence is material and that there were good and
substantial reasons for failure to present it in the proceeding before the
agency, the court may order that the additional evidence be taken before the
agency upon such conditions as the court deems proper. The agency may modify
its findings and order by reason of the additional evidence and shall, within a
time to be fixed by the court, file with the reviewing court, to become a part
of the record, the additional evidence, together with any modifications or new
findings or orders, or its certificate that the agency elects to stand on its
original findings and order, as the case may be.
(6) At any time subsequent to the filing
of the petition for review and prior to the date set for hearing the agency may
withdraw its order for purposes of reconsideration. If an agency withdraws an
order for purposes of reconsideration, the agency shall, within such time as
the court may allow, affirm, modify or reverse its order. If the petitioner is
dissatisfied with the agency action after withdrawal for purposes of
reconsideration, the petitioner may refile the petition for review and the
review shall proceed upon the revised order. An amended petition for review
shall not be required if the agency, on reconsideration, affirms the order or
modifies the order with only minor changes. If an agency withdraws an order for
purposes of reconsideration and modifies or reverses the order in favor of the
petitioner, the court shall allow the petitioner costs, but not attorney fees,
to be paid from funds available to the agency.
(7) Review of a contested case shall be
confined to the record, and the court shall not substitute its judgment for
that of the agency as to any issue of fact or agency discretion. In the case of
disputed allegations of irregularities in procedure before the agency not shown
in the record which, if proved, would warrant reversal or remand, the Court of
Appeals may refer the allegations to a master appointed by the court to take
evidence and make findings of fact upon them. The court shall remand the order
for further agency action if the court finds that either the fairness of the
proceedings or the correctness of the action may have been impaired by a
material error in procedure or a failure to follow prescribed procedure,
including a failure by the presiding officer to comply with the requirements of
ORS 183.417 (8).
(8)(a) The court may affirm, reverse or
remand the order. If the court finds that the agency has erroneously
interpreted a provision of law and that a correct interpretation compels a
particular action, the court shall:
(A) Set aside or modify the order; or
(B) Remand the case to the agency for
further action under a correct interpretation of the provision of law.
(b) The court shall remand the order to
the agency if the court finds the agencys exercise of discretion to be:
(A) Outside the range of discretion
delegated to the agency by law;
(B) Inconsistent with an agency rule, an
officially stated agency position, or a prior agency practice, if the
inconsistency is not explained by the agency; or
(C) Otherwise in violation of a
constitutional or statutory provision.
(c) The court shall set aside or remand
the order if the court finds that the order is not supported by substantial
evidence in the record. Substantial evidence exists to support a finding of
fact when the record, viewed as a whole, would permit a reasonable person to
make that finding. [1975 c.759 §15; 1977 c.798 §4; 1979 c.593 §24; 1985 c.757 §2;
1989 c.453 §1; 1991 c.331 §44; 2007 c.659 §§2,5]
183.484
Jurisdiction for review of orders other than contested cases; procedure; scope
of court authority. (1) Jurisdiction
for judicial review of orders other than contested cases is conferred upon the
Circuit Court for
(2) Petitions for review shall be filed
within 60 days only following the date the order is served, or if a petition
for reconsideration or rehearing has been filed, then within 60 days only
following the date the order denying such petition is served. If the agency
does not otherwise act, a petition for rehearing or reconsideration shall be
deemed denied the 60th day following the date the petition was filed, and in
such case petition for judicial review shall be filed within 60 days only
following such date. Date of service shall be the date on which the agency
delivered or mailed its order in accordance with ORS 183.470.
(3) The petition shall state the nature of
the petitioners interest, the facts showing how the petitioner is adversely
affected or aggrieved by the agency order and the ground or grounds upon which
the petitioner contends the order should be reversed or remanded. The review
shall proceed and be conducted by the court without a jury.
(4) At any time subsequent to the filing
of the petition for review and prior to the date set for hearing, the agency
may withdraw its order for purposes of reconsideration. If an agency withdraws
an order for purposes of reconsideration, it shall, within such time as the
court may allow, affirm, modify or reverse its order. If the petitioner is
dissatisfied with the agency action after withdrawal for purposes of
reconsideration, the petitioner may refile the petition for review and the
review shall proceed upon the revised order. An amended petition for review
shall not be required if the agency, on reconsideration, affirms the order or
modifies the order with only minor changes. If an agency withdraws an order for
purposes of reconsideration and modifies or reverses the order in favor of the
petitioner, the court shall allow the petitioner costs, but not attorney fees,
to be paid from funds available to the agency.
(5)(a) The court may affirm, reverse or
remand the order. If the court finds that the agency has erroneously
interpreted a provision of law and that a correct interpretation compels a
particular action, it shall:
(A) Set aside or modify the order; or
(B) Remand the case to the agency for
further action under a correct interpretation of the provision of law.
(b) The court shall remand the order to
the agency if it finds the agencys exercise of discretion to be:
(A) Outside the range of discretion
delegated to the agency by law;
(B) Inconsistent with an agency rule, an
officially stated agency position, or a prior agency practice, if the
inconsistency is not explained by the agency; or
(C) Otherwise in violation of a
constitutional or statutory provision.
(c) The court shall set aside or remand
the order if it finds that the order is not supported by substantial evidence
in the record. Substantial evidence exists to support a finding of fact when the
record, viewed as a whole, would permit a reasonable person to make that
finding.
(6) In the case of reversal the court
shall make special findings of fact based upon the evidence in the record and
conclusions of law indicating clearly all aspects in which the agencys order
is erroneous. [1975 c.759 §16; 1979 c.284 §121; 1979 c.593 §25a; 1985 c.757 §3;
1999 c.113 §1]
183.485
Decision of court on review of contested case. (1) The court having jurisdiction for
judicial review of contested cases shall direct its decision, including its
judgment, to the agency issuing the order being reviewed and may direct that
its judgment be delivered to the circuit court for any county designated by the
prevailing party for entry in the circuit courts register.
(2) Upon receipt of the courts decision,
including the judgment, the clerk of the circuit court shall enter a judgment
in the register of the court pursuant to the direction of the court to which
the appeal is made. [1973 c.612 §7; 1981 c.178 §11; 1985 c.540 §39; 2003 c.576 §193]
183.486
Form and scope of decision of reviewing court. (1) The reviewing courts decision under ORS
183.482 or 183.484 may be mandatory, prohibitory, or declaratory in form, and
it shall provide whatever relief is appropriate irrespective of the original
form of the petition. The court may:
(a) Order agency action required by law,
order agency exercise of discretion when required by law, set aside agency
action, remand the case for further agency proceedings or decide the rights,
privileges, obligations, requirements or procedures at issue between the
parties; and
(b) Order such ancillary relief as the
court finds necessary to redress the effects of official action wrongfully
taken or withheld.
(2) If the court sets aside agency action
or remands the case to the agency for further proceedings, it may make such
interlocutory order as the court finds necessary to preserve the interests of
any party and the public pending further proceedings or agency action.
(3) Unless the court finds a ground for
setting aside, modifying, remanding, or ordering agency action or ancillary
relief under a specified provision of this section, it shall affirm the agency
action. [1979 c.593 §27]
183.490
Agency may be compelled to act.
The court may, upon petition as described in ORS 183.484, compel an agency to
act where it has unlawfully refused to act or make a decision or unreasonably
delayed taking action or making a decision. [1957 c.717 §13; 1979 c.593 §28]
183.495 [1975 c.759 §16a; repealed by 1985 c.757 §7]
183.497
Awarding costs and attorney fees when finding for petitioner. (1) In a judicial proceeding designated
under subsection (2) of this section the court:
(a) May, in its discretion, allow a
petitioner reasonable attorney fees and costs if the court finds in favor of
the petitioner.
(b) Shall allow a petitioner reasonable
attorney fees and costs if the court finds in favor of the petitioner and
determines that the state agency acted without a reasonable basis in fact or in
law; but the court may withhold all or part of the attorney fees from any
allowance to a petitioner if the court finds that the state agency has proved
that its action was substantially justified or that special circumstances exist
that make the allowance of all or part of the attorney fees unjust.
(2) The provisions of subsection (1) of
this section apply to an administrative or judicial proceeding brought by a
petitioner against a state agency, as defined in ORS 291.002, for:
(a) Judicial review of a final order as provided
in ORS 183.480 to 183.484;
(b) Judicial review of a declaratory
ruling provided in ORS 183.410; or
(c) A judicial determination of the
validity of a rule as provided in ORS 183.400.
(3) Amounts allowed under this section for
reasonable attorney fees and costs shall be paid from funds available to the
state agency whose final order, declaratory ruling or rule was reviewed by the
court. [1981 c.871 §1; 1985 c.757 §5]
Note: 183.497 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 183 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
(Appeals From
Circuit Courts)
183.500
Appeals. Any party to the
proceedings before the circuit court may appeal from the judgment of that court
to the Court of Appeals. Such appeal shall be taken in the manner provided by
law for appeals from the circuit court in suits in equity. [1957 c.717 §14;
1969 c.198 §76; 2003 c.576 §394]
(Alternative
Dispute Resolution)
183.502
Authority of agencies to use alternative means of dispute resolution; model
rules; amendment of agreements and forms; agency alternative dispute resolution
programs. (1) Unless
otherwise prohibited by law, agencies may use alternative means of dispute
resolution in rulemaking proceedings, contested case proceedings, judicial
proceedings in which the agency is a party, and any other decision-making
process in which conflicts may arise. The alternative means of dispute
resolution may be arbitration, mediation or any other collaborative
problem-solving process designed to encourage parties to work together to
develop mutually agreeable solutions to disputes. Use of alternative means of
dispute resolution by an agency does not affect the application of ORS 192.410
to 192.505 to the agency, or the application of ORS 192.610 to 192.690 to the
agency.
(2) An agency that elects to utilize
alternative means of dispute resolution shall inform and may consult with the
Mark O. Hatfield School of Government, the Department of Justice and the Oregon
Department of Administrative Services in developing a policy or program for
implementation of alternative means of dispute resolution.
(3) The Attorney General, in consultation
with the Mark O. Hatfield School of Government and the Oregon Department of
Administrative Services, may develop for agencies model rules for the
implementation of alternative means of dispute resolution. An agency may adopt
all or part of the model rules by reference without complying with the
rulemaking procedures of ORS 183.325 to 183.410. Notice of the adoption of all
or part of the model rules must be filed by the agency with the Secretary of
State in the manner provided by ORS 183.355 for the filing of rules.
(4) When an agency reviews the standard
agreements, forms for contracts and forms for applying for grants or other
assistance used by the agency, the agency shall determine whether the
agreements and forms should be amended to authorize and encourage the use of
alternative means of dispute resolution in disputes that arise under the
agreement, contract or application.
(5) The Department of Justice, the Mark O.
Hatfield School of Government, the Oregon Department of Administrative Services
and the Governor shall collaborate to increase the use of alternative dispute
resolution to resolve disputes involving the State of
(a) Assisting agencies to develop a policy
for alternative means of dispute resolution;
(b) Assisting agencies to develop or
expand flexible and diverse agency programs that provide alternative means of
dispute resolution; and
(c) Providing assistance in the efficient
and effective selection of mediators or facilitators.
(6)(a) The Mark O. Hatfield School of
Government, the Oregon Department of Administrative Services and the Department
of Justice shall work cooperatively in designing the program under ORS 36.179
that is intended to provide services to, apply to or involve any state agency.
(b) The Mark O. Hatfield School of
Government, the Oregon Department of Administrative Services and the Department
of Justice shall enter into an interagency agreement that includes, but is not
limited to, provisions on appropriate roles, reporting requirements and
coordination of services provided to state agencies by the Mark O. Hatfield
School of Government pursuant to ORS 36.179.
(c) Before providing dispute resolution
services in a specific matter to a state agency under ORS 36.179, the Mark O.
Hatfield School of Government shall notify the Department of Justice of any
proposal to provide such services.
(7) Agencies with alternative dispute
resolution programs shall seek to identify cases appropriate for mediation and
other means of alternative dispute resolution and to design systems and
procedures to resolve those cases.
(8) The purpose of the agency alternative
dispute resolution programs is to:
(a) Increase agency efficiency;
(b) Increase public and agency
satisfaction with the process and results of dispute resolution; and
(c) Decrease the cost of resolving disputes.
(9) An agency may use the services of an
employee of another agency or of the federal government to serve as a mediator
or facilitator, and may provide the services of an agency employee to another
agency or to the federal government to serve as a mediator or facilitator. An
agency may enter into an agreement with another agency or with the federal
government to determine reimbursement for services of an employee acting as a
mediator or facilitator under the provisions of this subsection. This subsection
does not apply to mediation under ORS 243.650 to 243.782. [1993 c.647 §2; 1995
c.515 §2; 1997 c.706 §5; 1997 c.801 §42; 1997 c.837 §7; 2001 c.581 §2; 2003
c.791 §§27,27a; 2005 c.334 §§1,2; 2005 c.817 §6]
Note: 183.502 was added to and made a part of ORS
chapter 183 by legislative action but was not added to any smaller series
therein. See Preface to Oregon Revised Statutes for further explanation.
183.510 [1957 c.717 §16; repealed by 1971 c.734 §21]
(Housing Cost
Impact Statement)
183.530
Housing cost impact statement required for certain proposed rules. A housing cost impact statement shall be
prepared upon the proposal for adoption or repeal of any rule or any amendment
to an existing rule by:
(1) The State Housing Council;
(2) A building codes division of the
Department of Consumer and Business Services or any board associated with the
department with regard to rules adopted under ORS 455.610 to 455.630;
(3) The Land Conservation and Development
Commission;
(4) The Environmental Quality Commission;
(5) The Construction Contractors Board;
(6) The Occupational Safety and Health
Division of the Department of Consumer and Business Services; or
(7) The State Department of Energy. [1995
c.652 §2]
Note: 183.530 to 183.538 were added to and made a
part of ORS chapter 183 by legislative action but were not added to any smaller
series therein. See Preface to Oregon Revised Statutes for further explanation.
183.534
Housing cost impact statement described; rules. (1) A housing cost impact statement is an
estimate of the effect of a proposed rule or ordinance on the cost of
development of a 6,000 square foot parcel and the construction of a 1,200
square foot detached single family dwelling on that parcel. The State Housing
Council shall adopt rules prescribing the form to be used when preparing the
estimate and other such rules necessary to the implementation of this section
and ORS 183.530 and 183.538.
(2) A housing cost impact statement:
(a) For an agency listed in ORS 183.530
shall be incorporated in the:
(A) Fiscal impact statement required by
ORS 183.335 (2)(b)(E) for permanent rule adoption; or
(B) Statements required by ORS 183.335 (5)
for temporary rule adoption.
(b) Shall not be required for the adoption
of any procedural rule by an agency listed in ORS 183.530. [1995 c.652 §3; 1997
c.249 §54]
Note: See note under 183.530.
183.538
Effect of failure to prepare housing cost impact statement; judicial review. (1) Notwithstanding ORS 183.335 (12),
183.400 (4) or any other provision of law, the failure to prepare a housing
cost impact statement shall not affect the validity or effective date of any
rule or ordinance or any amendment to a rule or ordinance.
(2) If a rule or ordinance or any
amendment to a rule or ordinance is challenged based on the failure to prepare
a housing cost impact statement, the court or other reviewing authority shall
remand the proposed rule or ordinance or any amendment to a rule or ordinance
to the adopting or repealing entity if it determines that a housing cost impact
statement is required.
(3) The court or other reviewing authority
shall determine only whether a housing cost impact statement was prepared and
shall not make any determination as to the sufficiency of the housing cost
impact statement. [1995 c.652 §4; 2001 c.220 §4]
Note: See note under 183.530.
(Effects of
Rules on Small Business)
183.540
Reduction of economic impact on small business. If the statement of cost of compliance
effect on small businesses required by ORS 183.335 (2)(b)(E) shows that a rule
has a significant adverse effect upon small business, to the extent consistent
with the public health and safety purpose of the rule, the agency shall reduce
the economic impact of the rule on small business by:
(1) Establishing differing compliance or
reporting requirements or time tables for small business;
(2) Clarifying, consolidating or
simplifying the compliance and reporting requirements under the rule for small
business;
(3) Utilizing objective criteria for
standards;
(4) Exempting small businesses from any or
all requirements of the rule; or
(5) Otherwise establishing less intrusive
or less costly alternatives applicable to small business. [1981 c.755 §4; 2003
c.749 §7; 2005 c.807 §6]
183.545 [1981 c.755 §5; repealed by 2003 c.749 §17]
183.550 [1981 c.755 §6; repealed by 2003 c.749 §17]
183.560 [2001 c.374 §1; 2003 c.740 §1; renumbered
183.700 in 2003]
183.562 [2001 c.374 §2; renumbered 183.702 in 2003]
(Office of
Administrative Hearings)
183.600
Definitions. For the purposes
of ORS 183.600 to 183.690:
(1) Chief administrative law judge means
the person employed under ORS 183.610 to organize and manage the Office of
Administrative Hearings.
(2) Office means the Office of
Administrative Hearings established under ORS 183.605. [1999 c.849 §2; 2003
c.75 §1]
183.605
Office of Administrative Hearings. (1) The Office of Administrative Hearings is established within the
Employment Department. The office shall be managed by the chief administrative
law judge employed under ORS 183.610. The office shall make administrative law
judges available to agencies under ORS 183.600 to 183.690. Administrative law
judges assigned from the office under ORS 183.600 to 183.690 may:
(a) Conduct contested case proceedings on
behalf of agencies in the manner provided by ORS 183.600 to 183.690;
(b) Perform such other services, as may be
requested by an agency, that are appropriate for the resolution of disputes
arising out of the conduct of agency business; and
(c) Perform such other duties as may be
authorized under ORS 183.600 to 183.690.
(2) All persons serving as administrative
law judges in the office must meet the standards and training requirements of
ORS 183.680. [1999 c.849 §3; 2003 c.75 §2]
183.610
Chief administrative law judge.
(1) The Director of the Employment Department shall employ a person to serve as
chief administrative law judge for the Office of Administrative Hearings. The
director shall consider recommendations by the Office of Administrative
Hearings Oversight Committee in hiring a chief administrative law judge. The
person employed to serve as chief administrative law judge must be an active
member of the Oregon State Bar. The chief administrative law judge has all the
powers necessary and convenient to organize and manage the office. Subject to
the State Personnel Relations Law, the chief administrative law judge shall
employ all persons necessary for the administration of the office, prescribe
the duties of those employees and fix their compensation. The chief administrative
law judge shall serve for a term of four years. Notwithstanding ORS 236.140,
the chief administrative law judge may be removed during a term only for
inefficiency, incompetence, neglect of duty, malfeasance in office, unfitness
to render effective service or failure to continue to meet the criteria for
appointment.
(2) The chief administrative law judge
shall employ administrative law judges. The chief administrative law judge
shall ensure that administrative law judges employed for the office receive all
training necessary to meet the standards required under the program created
under ORS 183.680.
(3) The chief administrative law judge
shall take all actions necessary to protect and ensure the independence of each
administrative law judge assigned from the office. [1999 c.849 §4; 2003 c.75 §3]
183.615
Administrative law judges; duties; qualifications; rules. (1) An administrative law judge employed by
or contracting with the chief administrative law judge shall conduct hearings
on behalf of agencies as assigned by the chief administrative law judge. An
administrative law judge shall be impartial in the performance of the
administrative law judges duties and shall remain fair in all hearings
conducted by the administrative law judge. An administrative law judge shall
develop the record in contested case proceedings in the manner provided by ORS
183.417 (8).
(2) Only persons who have a knowledge of
administrative law and procedure may be employed by the chief administrative
law judge as administrative law judges. The chief administrative law judge by
rule may establish additional qualifications for administrative law judges
employed for the office. [1999 c.849 §5; 2003 c.75 §4; 2007 c.659 §§3,6]
183.620
Contract administrative law judges. (1) The chief administrative law judge for the Office of
Administrative Hearings may contract for the services of persons to act as
administrative law judges.
(2) Contract administrative law judges
shall meet the same qualifications as administrative law judges regularly
employed by the chief administrative law judge and shall be paid at an hourly
rate comparable to the per hour cost of salary and benefits for administrative
law judges regularly employed by the chief administrative law judge and
conducting similar hearings. [1999 c.849 §6; 2003 c.75 §5]
183.625
Assignment of administrative law judges; conduct of hearings. (1) In assigning an administrative law judge
to conduct hearings on behalf of an agency, the chief administrative law judge
shall, whenever practicable, assign an administrative law judge that has
expertise in the legal issues or general subject matter of the proceeding.
(2) Notwithstanding any other provision of
state law, any agency that is required to use administrative law judges assigned
from the Office of Administrative Hearings to conduct hearings must delegate
responsibility for the conduct of the hearing to an administrative law judge
assigned from the Office of Administrative Hearings, and the hearing may not be
conducted by the administrator, director, board, commission or other person or
body charged with administering the agency.
(3) Any agency may authorize an
administrative law judge assigned to conduct a hearing on behalf of the agency
under this section to enter a final order for the agency.
(4) An agency that is not required to use
administrative law judges assigned from the office may contract with the chief
administrative law judge for the assignment of an administrative law judge from
the office for the purpose of conducting one or more contested cases on behalf
of the agency. [1999 c.849 §7; 2003 c.75 §6]
183.630
Model rules of procedure; exemptions; depositions. (1) Except as provided in subsection (2) of
this section, all contested case hearings conducted by administrative law
judges assigned from the Office of Administrative Hearings must be conducted
pursuant to the model rules of procedure prepared by the Attorney General under
ORS 183.341 if the hearing is subject to the procedural requirements for
contested case proceedings.
(2) The Attorney General, after consulting
with the chief administrative law judge, may exempt an agency or a category of
cases from the requirements of subsection (1) of this section. The exemption
may be from all or part of the model rules adopted by the Attorney General. Any
exemption granted under this subsection must be made in writing.
(3) Except as may be expressly granted by
the agency to an administrative law judge assigned from the office, or as may
be expressly provided for by law, an administrative law judge conducting a
hearing for an agency under ORS 183.600 to 183.690 may not authorize a party to
take a deposition that is to be paid for by the agency. [1999 c.849 §8; 2003
c.75 §7]
183.635
Agencies required to use administrative law judges from Office of Administrative
Hearings; exceptions. (1)
Except as provided in this section, all agencies must use administrative law
judges assigned from the Office of Administrative Hearings established under
ORS 183.605 to conduct contested case hearings, without regard to whether those
hearings are subject to the procedural requirements for contested case
hearings.
(2) The following agencies need not use
administrative law judges assigned from the office:
(a) Attorney General.
(b) Boards of stewards appointed by the
Oregon Racing Commission.
(c) Bureau of Labor and Industries and the
Commissioner of the Bureau of Labor and Industries.
(d) Department of Corrections.
(e) Department of Education, State Board
of Education and Superintendent of Public Instruction.
(f) Department of Higher Education and
institutions of higher education listed in ORS 352.002.
(g) Department of Human Services for
vocational rehabilitation services cases under 29 U.S.C. 722(c) and disability
determination cases under 42 U.S.C. 405.
(h) Department of Revenue.
(i) Department of State Police.
(j) Employment Appeals Board.
(k) Employment Relations Board.
(L) Energy Facility Siting Council.
(m) Fair Dismissal Appeals Board.
(n) Governor.
(o) Land Conservation and Development
Commission.
(p) Land Use Board of Appeals.
(q) Local government boundary commissions
created pursuant to ORS 199.430.
(r) Oregon Youth Authority.
(s) Psychiatric Security Review Board.
(t) Public Utility Commission.
(u) Secretary of State.
(v) State Accident Insurance Fund
Corporation.
(w) State Apprenticeship and Training
Council.
(x) State Board of Parole and Post-Prison
Supervision.
(y)
(z) State Treasurer.
(aa) Wage and Hour Commission.
(3) The Workers Compensation Board is
exempt from using administrative law judges assigned from the office for any
hearing conducted by the board under ORS chapters 147, 654 and 656. Except as
specifically provided in this subsection, the Department of Consumer and Business
Services must use administrative law judges assigned from the office only for
contested cases arising out of the departments powers and duties under:
(a) ORS chapter 59;
(b) ORS 200.005 to 200.075;
(c) ORS chapter 455;
(d) ORS chapter 674;
(e) ORS chapters 706 to 716;
(f) ORS chapter 717;
(g) ORS chapters 722, 723, 725 and 726;
and
(h) ORS chapters 731, 732, 733, 734, 735,
737, 742, 743, 743A, 744, 746, 748 and 750.
(4) Notwithstanding any other provision of
law, in any proceeding in which an agency is required to use an administrative
law judge assigned from the office, an officer or employee of the agency may
not conduct the hearing on behalf of the agency.
(5) Notwithstanding any other provision of
ORS 183.600 to 183.690, an agency is not required to use an administrative law
judge assigned from the office if:
(a) Federal law requires that a different
administrative law judge or hearing officer be used; or
(b) Use of an administrative law judge
from the office could result in a loss of federal funds.
(6) Notwithstanding any other provision of
this section, the Department of Environmental Quality must use administrative
law judges assigned from the office only for contested case hearings conducted
under the provisions of ORS 183.413 to 183.470. [1999 c.849 §9; 2001 c.900 §46;
2003 c.75 §8; 2005 c.22 §131; 2005 c.26 §18; 2007 c.239 §9]
Note: The amendments to 183.635 by section 9,
chapter 239,
183.635 (1) Except as provided in this section, all
agencies must use administrative law judges assigned from the Office of
Administrative Hearings established under ORS 183.605 to conduct contested case
hearings, without regard to whether those hearings are subject to the
procedural requirements for contested case hearings.
(2) The following agencies need not use
administrative law judges assigned from the office:
(a) Attorney General.
(b) Boards of stewards appointed by the
Oregon Racing Commission.
(c) Bureau of Labor and Industries and the
Commissioner of the Bureau of Labor and Industries.
(d) Department of Corrections.
(e) Department of Education, State Board
of Education and Superintendent of Public Instruction.
(f) Department of Higher Education and
institutions of higher education listed in ORS 352.002.
(g) Department of Human Services for
vocational rehabilitation services cases under 29 U.S.C. 722(c) and disability
determination cases under 42 U.S.C. 405.
(h) Department of Revenue.
(i) Department of State Police.
(j) Employment Appeals Board.
(k) Employment Relations Board.
(L) Energy Facility Siting Council.
(m) Fair Dismissal Appeals Board.
(n) Governor.
(o) Land Conservation and Development
Commission.
(p) Land Use Board of Appeals.
(q) Local government boundary commissions
created pursuant to ORS 199.425 or 199.430.
(r) Oregon Youth Authority.
(s) Psychiatric Security Review Board.
(t) Public Utility Commission.
(u) Secretary of State.
(v) State Accident Insurance Fund
Corporation.
(w) State Apprenticeship and Training
Council.
(x) State Board of Parole and Post-Prison
Supervision.
(y)
(z) State Treasurer.
(aa) Wage and Hour Commission.
(3) The Workers Compensation Board is
exempt from using administrative law judges assigned from the office for any
hearing conducted by the board under ORS chapters 147, 654 and 656. Except as
specifically provided in this subsection, the Department of Consumer and
Business Services must use administrative law judges assigned from the office
only for contested cases arising out of the departments powers and duties
under:
(a) ORS chapter 59;
(b) ORS 200.005 to 200.075;
(c) ORS chapter 455;
(d) ORS chapter 674;
(e) ORS chapters 706 to 716;
(f) ORS chapter 717;
(g) ORS chapters 722, 723, 725 and 726;
and
(h) ORS chapters 731, 732, 733, 734, 735,
737, 742, 743, 743A, 744, 746, 748 and 750.
(4) Notwithstanding any other provision of
law, in any proceeding in which an agency is required to use an administrative
law judge assigned from the office, an officer or employee of the agency may
not conduct the hearing on behalf of the agency.
(5) Notwithstanding any other provision of
ORS 183.600 to 183.690, an agency is not required to use an administrative law
judge assigned from the office if:
(a) Federal law requires that a different
administrative law judge or hearing officer be used; or
(b) Use of an administrative law judge
from the office could result in a loss of federal funds.
(6) Notwithstanding any other provision of
this section, the Department of Environmental Quality must use administrative
law judges assigned from the office only for contested case hearings conducted
under the provisions of ORS 183.413 to 183.470.
183.640
Use of Office of Administrative Hearings by exempt agencies and by political
subdivisions. (1) Upon
request of an agency, the chief administrative law judge for the Office of
Administrative Hearings may assign administrative law judges from the office to
conduct contested case proceedings on behalf of agencies that are exempted from
mandatory use of administrative law judges assigned from the office under ORS
183.635.
(2) The chief administrative law judge may
contract with any political subdivision of this state to provide the services
of administrative law judges to the political subdivision for the purpose of
conducting quasi-judicial hearings on behalf of the political subdivision. [1999
c. 849 §10; 2003 c.75 §9]
183.645
Request for change of administrative law judge; rules. (1) After assignment of an administrative
law judge from the Office of Administrative Hearings to conduct a hearing on
behalf of an agency, the chief administrative law judge shall assign a
different administrative law judge for the hearing upon receiving a written
request from any party in the contested case or from the agency. The chief
administrative law judge may by rule establish time limitations and procedures
for requests under this section.
(2) Only one request for a change of
assignment of administrative law judge under subsection (1) of this section may
be granted by the chief administrative law judge without a showing of good
cause. If a party or agency fails to make a request under subsection (1) of
this section within the time allowed, or if a party or agency objects to an
administrative law judge assigned after a request for a different
administrative law judge has been granted under subsection (1) of this section,
the chief administrative law judge shall assign a different administrative law
judge only upon a showing of good cause.
(3) Notwithstanding subsection (1) of this
section, a different administrative law judge may not be assigned for a hearing
provided under ORS 813.410 or 813.440 on suspension of driving privileges,
except upon a showing of good cause. [1999 c.849 §11; 2001 c.294 §8; 2003 c.75 §10]
183.650
Form of order; modification of form of order by agency; finding of historical
fact. (1) In any contested
case hearing conducted by an administrative law judge assigned from the Office
of Administrative Hearings, the administrative law judge shall prepare and
serve on the agency and all parties to the hearing a form of order, including
recommended findings of fact and conclusions of law. The administrative law
judge shall also prepare and serve a proposed order in the manner provided by
ORS 183.464 unless the agency or hearing is exempt from the requirements of ORS
183.464.
(2) If the administrative law judge
assigned from the office will not enter the final order in a contested case
proceeding, and the agency modifies the form of order issued by the
administrative law judge in any substantial manner, the agency must identify
the modifications and provide an explanation to the parties to the hearing as
to why the agency made the modifications.
(3) An agency conducting a contested case
hearing may modify a finding of historical fact made by the administrative law
judge assigned from the Office of Administrative Hearings only if the agency
determines that the finding of historical fact made by the administrative law
judge is not supported by a preponderance of the evidence in the record. For
the purposes of this section, an administrative law judge makes a finding of
historical fact if the administrative law judge determines that an event did or
did not occur in the past or that a circumstance or status did or did not exist
either before the hearing or at the time of the hearing.
(4) If a party seeks judicial review of an
agencys modification of a finding of historical fact under subsection (3) of
this section, the court shall make an independent finding of the fact in
dispute by conducting a review de novo of the record viewed as a whole. If the
court decides that the agency erred in modifying the finding of historical fact
made by the administrative law judge, the court shall remand the matter to the
agency for entry of an order consistent with the courts judgment. [1999 c.849 §12;
2003 c.75 §11]
183.655
Fees. The chief
administrative law judge for the Office of Administrative Hearings shall
establish a schedule of fees for services rendered by administrative law judges
assigned from the office. The fee charged shall be in an amount calculated to
recover the cost of providing the administrative law judge, the cost of
conducting the hearing and all associated administrative costs. All fees
collected by the chief administrative law judge under this section shall be
paid into the Office of Administrative Hearings Operating Account created under
ORS 183.660. [1999 c.849 §13; 2003 c.75 §12]
183.660
Office of Administrative Hearings Operating Account. (1) The Office of Administrative Hearings
Operating Account is created within the General Fund. The account shall consist
of moneys paid into the account under ORS 183.655. Moneys credited to the
account are continuously appropriated to the chief administrative law judge for
the Office of Administrative Hearings created under ORS 183.605 for the purpose
of paying expenses incurred in the administration of the office.
(2) At the discretion of the chief
administrative law judge, petty cash funds may be established and maintained
for the purpose of administering the duties of the office. [1999 c.849 §14;
2003 c.75 §13]
183.665
Estimates of office expenses.
The chief administrative law judge for the Office of Administrative Hearings
shall estimate in advance the expenses that the office will incur during each
biennium and shall notify each agency required to use the offices services of
the agencys share of the anticipated expenses for periods within the biennium.
[1999 c.849 §15; 2003 c.75 §14]
183.670
Rules. Subject to the
provisions of the State Personnel Relations Law, the chief administrative law
judge for the Office of Administrative Hearings may adopt rules to:
(1) Organize and manage the Office of
Administrative Hearings established under ORS 183.605.
(2) Facilitate the performance of the
duties of administrative law judges assigned from the office.
(3) Establish qualifications for persons
employed as administrative law judges by the office.
(4) Establish standards and procedures for
the evaluation and training of administrative law judges employed by the
office, consistent with standards and training requirements established under
ORS 183.680. [1999 c.849 §16; 2003 c.75 §15]
183.675
Alternative dispute resolution.
ORS 183.600 to 183.690 do not limit in any way the ability of any agency to use
alternative dispute resolution, including mediation or arbitration, to resolve
disputes without conducting a contested case hearing or without requesting
assignment of an administrative law judge from the Office of Administrative
Hearings. [1999 c.849 §16a; 2003 c.75 §16]
183.680
Standards and training program.
(1) The chief administrative law judge for the Office of Administrative
Hearings, working in coordination with the Attorney General, shall design and
implement a standards and training program for administrative law judges
employed by the office and for persons seeking to be employed as administrative
law judges by the office. The program shall include:
(a) The establishment of an ethical code
for persons employed as administrative law judges by the office.
(b) Training for administrative law judges
employed by the office that is designed to assist in identifying cases that are
appropriate for the use of alternative dispute resolution processes.
(2) The program established by the chief
administrative law judge under this section may include:
(a) The conducting of courses on
administrative law, evidence, hearing procedures and other issues that arise in
presiding over administrative hearings, including courses designed to provide
any training required by the chief administrative law judge for administrative
law judges employed by the office.
(b) The certification of courses offered
by other persons for the purpose of any training required by the chief
administrative law judge for administrative law judges employed by the office.
(c) The provision of specialized training
for administrative law judges in subject matter areas affecting particular
agencies required to use administrative law judges assigned from the office.
(3) The chief administrative law judge is
bound by the ethical code established under this section and must
satisfactorily complete training required of administrative law judges employed
by the office other than specialized training in subject matter areas affecting
particular agencies. [1999 c.849 §19; 2003 c.75 §17]
183.685
Ex parte communications. (1)
An administrative law judge assigned from the Office of Administrative Hearings
who is presiding in a contested case proceeding and who receives an ex parte
communication described in subsections (3) and (4) of this section shall place
in the record of the pending matter:
(a) The name of each person from whom the
administrative law judge received an ex parte communication;
(b) A copy of any ex parte written
communication received by the administrative law judge;
(c) A copy of any written response to the
communication made by the administrative law judge;
(d) A memorandum reflecting the substance
of any ex parte oral communication made to the administrative law judge; and
(e) A memorandum reflecting the substance
of any oral response made by the administrative law judge to an ex parte oral
communication.
(2) Upon making a record of an ex parte
communication under subsection (1) of this section, an administrative law judge
shall advise the agency and all parties in the proceeding that an ex parte
communication has been made a part of the record. The administrative law judge
shall allow the agency and parties an opportunity to respond to the ex parte
communication.
(3) Except as otherwise provided in this
section, the provisions of this section apply to communications that:
(a) Relate to a legal or factual issue in
a contested case proceeding;
(b) Are made directly or indirectly to an
administrative law judge while the proceeding is pending; and
(c) Are made without notice and
opportunity for the agency and all parties to participate in the communication.
(4) The provisions of this section apply
to any ex parte communication made directly or indirectly to an administrative
law judge, or to any agent of an administrative law judge, by:
(a) A party;
(b) A partys representative or legal
adviser;
(c) Any other person who has a direct or
indirect interest in the outcome of the proceeding;
(d) Any other person with personal
knowledge of the facts relevant to the proceeding; or
(e) Any officer, employee or agent of the
agency that is using the administrative law judge to conduct the hearing.
(5) The provisions of this section do not
apply to:
(a) Communications made to an
administrative law judge by other administrative law judges;
(b) Communications made to an
administrative law judge by any person employed by the office to assist the
administrative law judge; or
(c) Communications made to an
administrative law judge by an assistant attorney general if the communications
are made in response to a request from the administrative law judge and the
assistant attorney general is not advising the agency that is conducting the
hearing. [1999 c.849 §20; 2003 c.75 §18]
183.690
Office of Administrative Hearings Oversight Committee. (1) The Office of Administrative Hearings
Oversight Committee is created. The committee consists of nine members, as
follows:
(a) The President of the Senate and the
Speaker of the House of Representatives shall appoint four legislators to the
committee. Two shall be Senators appointed by the President. Two shall be
Representatives appointed by the Speaker.
(b) The Governor shall appoint two members
to the committee. At least one of the members appointed by the Governor shall
be an active member of the Oregon State Bar with experience in representing
parties who are not agencies in contested case hearings.
(c) The Attorney General shall appoint two
members to the committee.
(d) The chief administrative law judge for
the Office of Administrative Hearings employed under ORS 183.610 shall serve as
an ex officio member of the committee. The chief administrative law judge may
cast a vote on a matter before the committee if the votes of the other members
are equally divided on the matter.
(2) The term of a legislative member of the
committee shall be two years. If a person appointed by the President of the
Senate or by the Speaker of the House ceases to be a Senator or Representative
during the persons term on the committee, the person may continue to serve as
a member of the committee for the balance of the members term on the
committee. The term of all other appointed members shall be four years.
Appointed members of the committee may be reappointed. If a vacancy occurs in
one of the appointed positions for any reason during the term of membership,
the official who appointed the member to the vacated position shall appoint a
new member to serve the remainder of the term. An appointed member of the
committee may be removed from the committee at any time by the official who
appointed the member.
(3)(a) The members of the committee shall
select from among themselves a chairperson and a vice chairperson.
(b) The committee shall meet at such times
and places as determined by the chairperson.
(4) Legislative members shall be entitled
to payment of per diem and expense reimbursement under ORS 171.072, payable
from funds appropriated to the Legislative Assembly.
(5) The committee shall:
(a) Study the operations of the Office of
Administrative Hearings;
(b) Make any recommendations to the
Governor and the Legislative Assembly that the committee deems necessary to
increase the effectiveness, fairness and efficiency of the operations of the
Office of Administrative Hearings;
(c) Make any recommendations for
additional legislation governing the operations of the Office of Administrative
Hearings; and
(d) Conduct such other studies as
necessary to accomplish the purposes of this subsection.
(6) The Employment Department shall
provide the committee with staff, subject to availability of funding for that
purpose. [1999 c.849 §21; 2003 c.75 §19; 2005 c.22 §132]
PERMITS AND
LICENSES
183.700
Permits subject to ORS 183.702.
(1) As used in this section and ORS 183.702, permit means an individual and
particularized license, permit, certificate, approval, registration or similar
form of permission required by law to pursue any activity specified in this
section, for which an agency must weigh information, make specific findings and
make determinations on a case-by-case basis for each applicant.
(2) The requirements of this section and
ORS 183.702 apply to the following permits granted by:
(a) The Department of Environmental
Quality under ORS 448.415, 454.655, 454.695, 454.790, 454.800, 459.205,
465.315, 465.325, 466.140, 466.145, 466.706 to 466.882, 468A.040, 468A.310,
468B.035, 468B.040, 468B.045, 468B.050 and 468B.095.
(b) The Department of State Lands under
ORS 196.800 to 196.900 and 390.805 to 390.925.
(c) The Water Resources Department under
ORS chapters 537 and 540, except those permits issued under ORS 537.747 to
537.765.
(d) The State Department of Agriculture
pursuant to ORS 468B.200 to 468B.230 and 622.250.
(e) The State Department of Fish and
Wildlife pursuant to ORS 497.142, 497.218, 497.228, 497.238, 497.248, 497.252,
497.298, 497.308, 498.019, 498.279, 508.106, 508.300, 508.760, 508.775,
508.801, 508.840, 508.880, 508.926 and 509.140.
(f) The Department of Transportation
pursuant to ORS 374.312. [Formerly 183.560]
Note: 183.700 and 183.702 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
183 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
183.702
Statement of criteria and procedures for evaluating permit application;
documentation of decision on application; required signature. (1) At the time a person applies for a
permit specified in ORS 183.700, the issuing agency shall offer a document to
that applicant that specifies the criteria and procedures for evaluating a
permit application.
(2) The agencies specified in ORS 183.700
must document in writing the basis for all decisions to deny a permit specified
in ORS 183.700, including citation to the criteria applied by the agency and
the manner in which agency standards were utilized in applying the criteria.
The documentation required under this section shall be made part of the record
for the decision on the permit application.
(3) At least one officer or employee of
the issuing agency who has authority to sign orders on behalf of the agency, or
the officer or employee responsible for the decision to deny a permit specified
in ORS 183.700, shall sign the documentation required under subsection (2) of
this section.
(4) The issuing agency shall provide to
the applicant a copy of the documentation required under subsection (2) of this
section. [Formerly 183.562]
Note: See note under 183.700.
183.705
Extended term for renewed licenses; fees; continuing education; rules. (1) Notwithstanding any other provision of law,
an agency that issues licenses that must be renewed on an annual basis under
the laws administered by the agency also may offer those licenses with terms of
two, three, four or five years. Notwithstanding any other provision of law, an
agency that issues licenses that must be renewed on a biennial basis under the
laws administered by the agency also may offer those licenses with terms of
three, four or five years. Extended terms may be offered only for renewed
licenses and may not be offered for initial applications for licenses.
(2) An agency may offer an extended term
under this section for a license issued by the agency only after adopting a
rule authorizing the extended term. An agency may adopt a rule authorizing an
extended term only if the agency finds that the extended term is consistent
with public safety and with the objectives of the licensing requirement. An
agency by rule may prohibit extended terms based on prior license discipline of
an applicant.
(3) An applicant must meet all qualifications
established by the agency to be granted an extended term.
(4) An agency may not offer an extended
term under this section if:
(a) Another agency or a local government,
as defined by ORS 174.116, is authorized by statute to make a recommendation on
the issuance of the license;
(b) The agency or the local government, as
defined by ORS 174.116, that has authority to make a recommendation on the
issuance of the license has recommended against the issuance of the license;
and
(c) The recommendation of the agency or
the local government, as defined by ORS 174.116, is based on licensing criteria
established by statute or by rule.
(5) An extended term granted under this
section may be revoked by an agency if the agency determines that the licensee
is subject to discipline under the licensing criteria applicable to the
licensee. An agency offering extended terms under this section by rule may
establish other grounds for revoking an extended term under this section.
(6) Notwithstanding any other provision of
law, an agency that offers an extended term under this section for a license
issued by the agency shall increase the annual or biennial license fee
established by statute by a percentage no greater than necessary to ensure that
there is no revenue loss by reason of the extended term.
(7) Notwithstanding any other provision of
law, an agency that offers an extended term under this section for a license
issued by the agency shall increase any annual or biennial continuing education
requirement established by statute as necessary to ensure that there is no
reduction in the continuing education requirement for licensees by reason of
the extended term. [2005 c.76 §2; 2007 c.768 §1]
LEGISLATIVE
REVIEW OF RULES
183.710
Definitions for ORS 183.710 to 183.725. As used in ORS 183.710 to 183.725, unless the context requires
otherwise:
(1) Committee means the Legislative
Counsel Committee.
(2) Rule has the meaning given in ORS
183.310.
(3) State agency has the meaning given
to agency in ORS 183.310. [Formerly 171.705]
Note: 183.710 to 183.725 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
183 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
183.715
Submission of adopted rule to Legislative Counsel required; exception. (1) A state agency that adopts a rule shall
submit a copy of the adopted rule to the Legislative Counsel within 10 days
after the agency files a certified copy of the rule in the office of the
Secretary of State as provided in ORS 183.355 (1). The copy of an amended rule
that is submitted to the Legislative Counsel must show all changes to the rule
by striking through material to be deleted and underlining all new material, or
by any other method that clearly shows all new and deleted material.
(2) Notwithstanding subsection (1) of this
section, an agency adopting a rule incorporating published standards or a
specialty code by reference is not required to file a copy of those standards
with the Legislative Counsel if:
(a) The standards or a specialty code
adopted are unusually voluminous and costly to reproduce; and
(b) The rule filed with the Legislative
Counsel identifies the location of the standards or a specialty code so incorporated
and makes them available to the Legislative Counsel on the request of the
Legislative Counsel. [Formerly 171.707; 1991 c.94 §1; 1999 c.167 §1; 2005 c.18 §2]
Note: See note under 183.710.
183.720
Procedure for review of agency rule; reports on rules claimed to be duplicative
or conflicting. (1) The
Legislative Counsel may review, or shall review at the direction of the
Legislative Counsel Committee, a proposed rule or an adopted rule of a state
agency.
(2) The Legislative Counsel may review an
adopted rule of a state agency upon the written request of any person affected
by the rule. The Legislative Counsel shall review a proposed or adopted rule of
a state agency upon the written request of any member of the Legislative
Assembly. The written request for review must identify the specific objection
or problem with the rule.
(3) When reviewing a rule of a state
agency pursuant to subsection (1) or (2) of this section, the Legislative
Counsel shall:
(a) Determine whether the rule appears to
be within the intent and scope of the enabling legislation purporting to
authorize its adoption; and
(b) Determine whether the rule raises any
constitutional issue other than described in paragraph (a) of this subsection,
and if so, the nature of the issue.
(4) In making a determination under
subsection (3)(a) of this section, the Legislative Counsel shall, wherever
possible, follow generally accepted principles of statutory construction.
(5) The Legislative Counsel shall prepare
written findings on a rule reviewed, setting forth the determinations made
under subsection (3) of this section.
(6) When a review of a rule is made by the
Legislative Counsel, the Legislative Counsel shall send a copy of the
determinations made under subsection (3) of this section to the committee, and
if the review was requested by a member of the Legislative Assembly or by a
person affected by the rule, to the person requesting the review. If the
Legislative Counsel determines that a rule is not within the intent and scope
of the enabling legislation purporting to authorize the state agencys adoption
of the rule, or that the rule raises a constitutional issue, the Legislative
Counsel shall also send a copy of the determination to the state agency. The
Legislative Counsel may request that the state agency respond in writing to the
determinations or appear at the meeting of the committee at which the committee
will consider the determinations. The committee may direct the Legislative
Counsel to send a copy of the determinations to the presiding officer of a
house of the Legislative Assembly, who may refer the determinations to any
legislative committee concerned.
(7) A member of the Legislative Assembly
may request that Legislative Counsel prepare a report on a rule adopted by a state
agency that the member asserts is duplicative of or conflicts with another
rule. A person affected by a rule adopted by a state agency may request that
Legislative Counsel prepare a report on the rule if the person asserts that the
rule is duplicative of or conflicts with another rule. A request for a report
must be in writing and contain copies of the two rules that are claimed to be
duplicative or conflicting. The second rule may be either a rule adopted by a
state agency or a rule adopted by a federal agency. Upon receipt of the written
request, the Legislative Counsel shall prepare a report to the committee that
contains:
(a) A copy of the request, including
copies of the two rules that the requester asserts are conflicting or
duplicative; and
(b) Legislative Counsels analysis of the
requirements of the two rules.
(8) Upon receipt of a report under
subsection (7) of this section, the committee may issue a determination that a
rule is duplicative of or conflicts with the other cited rule.
(9) When a report on a rule is made by the
Legislative Counsel, the Legislative Counsel shall send a copy of the report
and any determinations made under subsection (8) of this section to each state
agency concerned and to the person requesting the review. The committee may
direct the Legislative Counsel to send a copy of the determinations to the
presiding officer of a house of the Legislative Assembly, who may refer the
determinations to any legislative committee concerned. [Formerly 171.709; 1993
c.729 §7; 1997 c.602 §4; 2001 c.156 §1]
Note: See note under 183.710.
183.722
Required agency response to Legislative Counsel determination. (1) If the Legislative Counsel determines
under ORS 183.720 (3) that a proposed or adopted rule is not within the intent
and scope of the enabling legislation purporting to authorize the rules
adoption, or that the rule is not constitutional, and the Legislative Counsel
has provided a copy of that determination to the state agency pursuant to
183.720 (6), the state agency shall either make a written response to the
determination or appear at the meeting of the Legislative Counsel Committee at
which the committee will consider the determinations. The response of the state
agency shall indicate if the agency intends to repeal, amend or take other
action with respect to the rule.
(2) If the Legislative Counsel determines
under ORS 183.720 (3) that a proposed or adopted rule is not within the intent
and scope of the enabling legislation purporting to authorize the rules
adoption, or that the rule is not constitutional, and the Legislative Counsel
Committee is not satisfied with the response to those issues made by the state
agency, the committee may request that one or more representatives of the state
agency appear at a subsequent meeting of the committee along with a
representative of the Oregon Department of Administrative Services for the
purpose of further explaining the position of the state agency.
(3) If a state agency is requested under
subsection (2) of this section to appear at a subsequent meeting of the
committee along with a representative of the Oregon Department of
Administrative Services, the state agency shall promptly notify the department
of the request. The notification to the department must be in writing, and must
include a copy of the determinations made by the Legislative Counsel and a copy
of any written response made by the agency to the determinations. [1997 c.602 §7;
1999 c.31 §2]
Note: See note under 183.710.
183.725
Report of Legislative Counsel Committee to agencies and Legislative Assembly. (1) The Legislative Counsel Committee, at
any time, may review any proposed or adopted rule of a state agency, and may
report its recommendations in respect to the rule to the agency.
(2) The committee shall report to the
Legislative Assembly at each regular session on its review of state agency
rules. [Formerly 171.713; 1993 c.729 §8; 1997 c.602 §5; 1999 c.31 §1]
Note: See note under 183.710.
CIVIL
PENALTIES
183.745
Civil penalty procedures; notice; hearing; judicial review; exemptions;
recording; enforcement. (1)
Except as otherwise provided by law, an agency may only impose a civil penalty
as provided in this section.
(2) A civil penalty imposed under this
section shall become due and payable 10 days after the order imposing the civil
penalty becomes final by operation of law or on appeal. A person against whom a
civil penalty is to be imposed shall be served with a notice in the form
provided in ORS 183.415. Service of the notice shall be accomplished in the
manner provided by ORS 183.415.
(3) The person to whom the notice is
addressed shall have 20 days from the date of service of the notice provided
for in subsection (2) of this section in which to make written application for
a hearing. The agency may by rule provide for a longer period of time in which
application for a hearing may be made. If no application for a hearing is made
within the time allowed, the agency may make a final order imposing the
penalty. A final order entered under this subsection need not be delivered or
mailed to the person against whom the civil penalty is imposed.
(4) Any person who makes application as
provided for in subsection (3) of this section shall be entitled to a hearing.
The hearing shall be conducted as a contested case hearing pursuant to the
applicable provisions of ORS 183.413 to 183.470.
(5) Judicial review of an order made after
a hearing under subsection (4) of this section shall be as provided in ORS
183.480 to 183.497 for judicial review of contested cases.
(6) When an order assessing a civil
penalty under this section becomes final by operation of law or on appeal, and
the amount of penalty is not paid within 10 days after the order becomes final,
the order may be recorded with the county clerk in any county of this state.
The clerk shall thereupon record the name of the person incurring the penalty
and the amount of the penalty in the County Clerk Lien Record.
(7) This section does not apply to
penalties:
(a) Imposed under the tax laws of this
state;
(b) Imposed under the provisions of ORS
646.760 or 652.332;
(c) Imposed under the provisions of ORS
chapter 654, 656 or 659A; or
(d) Imposed by the Public Utility
Commission.
(8) This section creates no new authority
in any agency to impose civil penalties.
(9) This section does not affect:
(a) Any right under any other law that an
agency may have to bring an action in a court of this state to recover a civil
penalty; or
(b) The ability of an agency to collect a
properly imposed civil penalty under the provisions of ORS 305.830.
(10) The notice provided for in subsection
(2) of this section may be made part of any other notice served by the agency
under ORS 183.415.
(11) Informal disposition of proceedings
under this section, whether by stipulation, agreed settlement, consent order or
default, may be made at any time.
(12) In addition to any other remedy
provided by law, recording an order in the County Clerk Lien Record pursuant to
the provisions of this section has the effect provided for in ORS 205.125 and
205.126, and the order may be enforced as provided in ORS 205.125 and 205.126.
(13) As used in this section:
(a) Agency has that meaning given in ORS
183.310.
(b) Civil penalty includes only those
monetary penalties that are specifically denominated as civil penalties by
statute. [Formerly 183.090]
Note: 183.745 was enacted into law by the Legislative Assembly but was not
added to or made a part of ORS chapter 183 or any series therein by legislative
action. See Preface to Oregon Revised Statutes for further explanation.
READABILITY
OF PUBLIC WRITINGS
183.750
State agency required to prepare public writings in readable form. (1) Every state agency shall prepare its
public writings in language that is as clear and simple as possible.
(2) As used in this section:
(a) Public writing means any rule, form,
license or notice prepared by a state agency.
(b) State agency means any officer,
board, commission, department, division or institution in the executive or
administrative branch of state government. [Formerly 183.025]
Note: 183.750 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 183 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
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