Administrative Procedures Act

ORS 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 (Notice of right to hearing), 183.417 (Procedure in contested case hearing), 183.425 (Depositions or subpoena of material witness), 183.450 (Evidence in contested cases), 183.460 (Examination of evidence by agency) and 183.470 (Orders in contested cases).

(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 (Water quality permit) 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 agency’s proceeding or represents a public interest in such result. The agency’s determination is subject to judicial review in the manner provided by ORS 183.482 (Jurisdiction for review of contested cases) 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 (Agency determination of applicability of rule or statute to petitioner) or 305.105 (Declaratory rulings by department).

(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 (Disciplinary procedures).

(10)

(a) “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.

(b)

“Small business” does not include a coordinated care organization as defined in ORS 414.025 (Definitions for ORS chapters 411, 413 and 414). [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; 2019 c.529 §4]

Notes of Decisions

The placing of specific names on a ballot by the Secretary of State is not the promulgation of a rule in that the placement does not implement, interpret or prescribe law or policy. Porter v. Myers, 9 Or App 151, 496 P2d 227 (1972), Sup Ct review denied

Administrative act regulating rents in a housing project was a "rule" and not an "order" formulated in a "contested case." Amazon Coop. Tenants v. State Bd. of Higher Educ., 15 Or App 418, 516 P2d 89 (1973), Sup Ct review denied

A "cease and desist order" by the Board of Optometry requiring an optometrist to discontinue certain advertising, followed by a communication stating that failure to comply would result in proceedings to suspend or revoke his license, was an order subject to petition for review. Aplanalp v. State ex rel Ore. Bd. of Optometry, 21 Or App 501, 535 P2d 573 (1975)

Because the decision to discontinue child care payments was a rule requiring notice and hearing prior to adoption rather than an "internal management directive" which is exempt from the rule-making provisions of the Administrative Procedures Act, it was error to dismiss the suit. Burke v. Children's Services Div., 26 Or App 145, 552 P2d 592 (1976)

The commission's consent, pursuant to [former] ORS 483.542, to the City of Portland's designation of a truck route is not a rule within this section. United Parcel Serv. Inc. v. Ore. Trans. Comm., 27 Or App 147, 555 P2d 778 (1976)

The provision concerning medical expenses in the Public Welfare Division Manual did not fall within the "internal management directive" exception to the rulemaking procedures. Clark v. Public Welfare Div., 27 Or App 473, 556 P2d 722 (1976)

Agency action was a "rule" rather than an "internal management directive" and required compliance with the rulemaking procedures of ORS chapter 183. Gray Panthers v. Pub. Welfare Div., 28 Or App 841, 561 P2d 674 (1977)

Food Stamp Manual provision, which treated tribal land payments to native Americans as "income," was rule within meaning of this section, and was thus invalid where promulgated without public participation. Burke v. Public Welfare Division, 31 Or App 161, 570 P2d 87 (1977)

Grandparents of prospective adoptive children do not, because of status as grandparents or former custodians of these children, have constitutionally protected liberty interest entitling them to contested case hearing under this section before agency refuses consent to adoption. Graham v. Children's Services Division, 39 Or App 27, 591 P2d 375 (1979), Sup Ct review denied

Internal management directives and similar actions under this section directed by governmental agency to other agencies or units of government cannot at the same time be orders under this section. Portland Inn v. OTC, 39 Or App 749, 593 P2d 1233 (1979)

Local government boundary commissions are state agencies within meaning of this section. Fosses v. Portland Area LGBC, 43 Or App 647, 603 P2d 1235 (1979)

Children's Services Division's original "directive" or "statement" adopting day care payment program constituted implementation of agency policy within meaning of this section, despite informality attending its promulgation. Burke v. Children's Services Division, 288 Or 533, 607 P2d 141 (1980)

Agency statement is rule of statutory interpretation and policy for implementation. Morgan v. Stimson Lumber Co., 288 Or 595, 607 P2d 150 (1980)

Actions by Health Division and Environmental Quality Commission under ORS 222.880 are not combined administrative proceedings, but rather separate agency actions each resulting in "final order." West Side Sanitary Dist. v. Health Div., 289 Or 417, 614 P2d 1151 (1980)

Since provisions of ORS 197.251 do not require that rights of either local government whose comprehensive plan has been submitted for acknowledgment or persons who object to acknowledgment are to be "determined only after an agency hearing at which specific parties are entitled to be heard," acknowledgment proceedings are not "contested cases" under this section. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)

LCDC orders "acknowledging" local comprehensive plans are not rules within meaning of this section. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)

Where school district employees were determined to be in bargaining unit at time of its recognition by school district and no new negotiations were required as to them, Employment Relations Board clarification order was not "tentative or preliminary" declaration and was final order. Reynolds School Dist. v. OSEA, 58 Or App 609, 650 P2d 119 (1982)

Order denying extension of time for filing request for hearing pursuant to ORS 657.875 is "contested case" under this section. Sayers v. Employment Division, 59 Or App 270, 650 P2d 1024 (1982)

"Internal management directives" exempted from definition of rule have two main characteristics: (1) they affect individuals solely in their capacities as members of agency involved rather than as members of general public who may have occasion to deal with agency; and (2) they are not self-executing. Rogue Flyfishers v. Water Policy Review Bd., 62 Or App 412, 660 P2d 1089 (1983)

Order by Environmental Quality Commission denying application for solid waste pollution control facility tax credit certificate is not reviewable in Court of Appeals because EQC proceeding does not satisfy statutory requirements of contested case. Linnton Plywood Assoc. v. DEQ, 68 Or App 412, 681 P2d 1180 (1984), Sup Ct review denied

Attorney general's letter is not "final order" within meaning of this section. Mongelli v. Oregon Life and Health Guaranty, 85 Or App 518, 737 P2d 633 (1987)

Rejection of contract bid constituted order in other than contested case. Clarke Electric, Inc. v. State Highway Division, 93 Or App 693 763 P2d 1199 (1988)

State Health Planning and Development Agency decision that medical center proposal to convert acute care beds to skilled nursing facility beds was subject to certificate of need review was preliminary agency decision and not reviewable final order. Merle West Medical Center v. SHPDA, 94 Or App 148, 764 P2d 613 (1988)

Petitioner, who held one-year teaching contract with state college was employee of Higher Education and not college, such that decision not to renew contract was not "order" under this section. Gruszczynski v. Bd. of Higher Ed, 106 Or App 260, 806 P2d 1168 (1991)

Oregon State Apprenticeship Council's dissolution of Oregon Operating Engineers Joint Apprenticeship and Training Committee cannot lead to contested case, because committee's specific functions are not rights or privileges within meaning of ORS 183.310 (2)(a)(B). Oregon Operating Eng. v. Oregon State Apprent., 108 Or App 24, 813 P2d 76 (1991), Sup Ct review denied

Notice of rule change issued under ORS 183.355 is not "order" under this section, and judicial review is not available under ORS 183.484. Calif. Table Grape Comm'n v. Dept. of Human Res., 109 Or App 222, 818 P2d 983 (1991)

Directive announcing priorities for inmate access to law library was not "rule" under this section because failure to follow it could not result in disciplinary action. Smith v. Oregon State Penitentiary, 113 Or App 386, 832 P2d 1270 (1992)

Secretary of State qualifies as state agency entitled to conduct contested case hearings. Strombeck v. Secretary of State, 128 Or App 142, 874 P2d 1366 (1994), Sup Ct review denied

"Final order" includes written findings of fact, conclusions of law, reasoning and result constituting final written expression of agency action regardless of how material is labeled. Brian v. Oregon Government Ethics Commission, 319 Or 151, 874 P2d 1294 (1994)

Agency approval of private sector standard without subjecting standard itself to rulemaking process is insufficient to qualify standard as "rule." Lemma Wine Co. v. National Council on Compensation Insurance, 194 Or App 371, 95 P3d 238 (2004)

Where person has established initial general qualification for, or entitlement to, benefit, proceeding to determine extent of benefit must be conducted as contested case. Corey v. Department of Land Conservation and Development, 210 Or App 542, 152 P3d 933 (2007), on reconsideration 212 Or App 536, 159 P3d 327 (2007)

Agency decision rests solely on result of "test" if best way to verify passage or failure is to have person repeat testing process. Rooklidge v. DMV, 217 Or App 172, 174 P3d 1120 (2007), Sup Ct review denied

Atty. Gen. Opinions

Construing the term "agency," (1976) Vol 37, p 1487; construing the term "rule," (1976) Vol 37, p 1487; "Guidelines for Implementation of Enrolled House Bill 2145" not subject to rule-making requirements, (1976) Vol 38, p 34;

Establishment and Application of Standards By Commission for Child Care In Awarding Grants to Contractors of Newly Established Child Care Information and Referral Services, (1989) Vol 46, P 133

Law Review Citations

53 OLR 478 (1974); 54 OLR 387-389 (1975); 15 EL 223 (1985); 94 OLR 565 (2016)

§§ 183.310 to 183.550

See annotations under ORS chapter 183.

Chapter 183

Notes of Decisions

A legislative delegation of power in terms as broad as those used in [former] ORS 471.295 (1) places upon the administrative agency a responsibility to establish standards by which the law is to be applied. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 16 Or App 63, 517 P2d 289 (1973)

Administrative regulation providing that failure to perform responsibilities adequately was a ground for employee's dismissal. Palen v. State Bd. of Higher Educ., 18 Or App 442, 525 P2d 1047 (1974), Sup Ct review denied

Where it was determined that agency invalidly terminated substantive policy, trial court did not have authority to order agency to resume policy in absence of validly adopted agency rule. Burke v. Children's Services Division, 39 Or App 819, 593 P2d 1262 (1979), aff'd 288 Or 533, 607 P2d 141 (1980)

"Trending factors" published by the Department of Revenue and used to appraise property for purposes of property taxation are not "rules" within the meaning of this chapter. Borden Inc. v. Dept. of Rev., 286 Or 567, 595 P2d 1372 (1979)

Appellate court may review proceeding meeting definition of contested case whether or not proceeding was formal administrative hearing. Patton v. State Bd. of Higher Ed., 293 Or 363, 647 P2d 931 (1982)

Circuit court could not entertain action for declaratory judgment directed at PERS, because PERS is subject to APA, which provides exclusive method for review of its actions. FOPPO v. County of Marion, 93 Or App 93, 760 P2d 1353 (1988), Sup Ct review denied

Board of Education approval of textbook for use in state public schools was not "rule," but was "order in other than contested case," and jurisdiction for judicial review is in circuit court. Oregon Env. Council v. Oregon State Bd. of Ed., 307 Or 30, 761 P2d 1322 (1988)

Preponderance of evidence standard applies where initial license application is denied based on willful fraud. Sobel v. Board of Pharmacy, 130 Or App 374, 882 P2d 606 (1994), Sup Ct review denied

Completed Citations

Wright v. Bateson, 5 Or App 628, 485 P2d 641 (1971), Sup Ct review denied, cert. denied, 405 US 930 (1972)

Atty. Gen. Opinions

State Speed Control Board subject to Administrative Procedures Act, (1974) Vol 36, p 1024; proxy voting at board meeting, (1974) Vol 36, p 1064; student conduct proceedings as "contested cases," (1976) Vol 37, p 1461; rulemaking authority of Statewide Health Coordinating Council and of Certificate of Need Appeals Board, (1977) Vol 38, p 1229; Oregon Medical Insurance Pool is fundamentally private-sector body, under virtually total private control, created by state to fulfill public purpose and is not state agency or public body subject to Administrative Procedures Act (APA), (1989) Vol 46, p 155

Law Review Citations

51 OLR 245 (1971); 53 OLR 364, 365 (1974); 10 WLJ 373, 420 (1974); 13 WLJ 499, 517, 525, 537 (1977); 57 OLR 334 (1978); 22 WLR 355 (1986); 36 WLR 219 (2000)


Source

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Jun. 26, 2021