Administrative Procedures Act

ORS 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 (Model rules of procedure) (4), which provides a reasonable opportunity for interested persons to be notified of the agency’s proposed action;

(b)

In the bulletin referred to in ORS 183.360 (Publication of rules and orders) 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)

Delivered only by electronic mail, 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 agency’s 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 person’s 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 that 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 (Housing cost impact statement required for certain proposed rules), the statement of fiscal impact shall also include a housing cost impact statement as described in ORS 183.534 (Housing cost impact statement described);

(F)

If an advisory committee is not appointed under the provisions of ORS 183.333 (Policy statement), 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 rule’s 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 (Publication of rules and orders).

(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 (Publication of rules and orders) 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 (Publication of rules and orders) 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 adults in custody 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 agency’s 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 (Housing cost impact statement required for certain proposed rules), a housing cost impact statement as defined in ORS 183.534 (Housing cost impact statement described).

(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 agency’s 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)

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.

(d)

Members of the Legislative Assembly who receive notices under subsection (15) of this section may request that an agency furnish paper copies of the notices.

(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 (Definitions for ORS 279.835 to 279.855) to 279.855 (Entities that may obtain goods and services through Oregon Department of Administrative Services), 279A.140 (State procurement of goods and services) to 279A.161 (Review and verification of advice and recommendations concerning procurements), 279A.250 (Definitions for ORS 279A.250 to 279A.290) to 279A.290 (Miscellaneous receipts accounts), 279A.990 (Penalties), 279B.050 (Methods of source selection) to 279B.085 (Special procurements), 279B.200 (Definitions for ORS 279B.200 to 279B.240) to 279B.240 (Exclusion of recycled oils prohibited), 279B.270 (State contracting agencies to use recovered resources and recycled materials), 279B.275 (Purchase of goods containing recycled polyethylene material), 279B.280 (Use of recycled products when economically feasible), 279C.360 (Requirement for public improvement advertisements), 279C.365 (Requirements for solicitation documents and bids and proposals), 279C.370 (First-tier subcontractor disclosure), 279C.375 (Award and execution of contract), 279C.380 (Performance bond), 279C.385 (Return or retention of bid security), 279C.500 (“Person” defined) to 279C.530 (Condition concerning payment for medical care and providing workers’ compensation), 279C.540 (Maximum hours of labor on public contracts), 279C.545 (Time limitation on claim for overtime), 279C.550 (“Retainage” defined) to 279C.570 (Prompt payment policy), 279C.580 (Contractor’s relations with subcontractors), 279C.585 (Authority to substitute undisclosed first-tier subcontractor), 279C.590 (Complaint process for substitutions of subcontractors), 279C.600 (Right of action on payment bond or public works bond of contractor or subcontractor) to 279C.625 (Joint liability when payment bond not executed), 279C.650 (“Labor dispute” defined) to 279C.670 (Application of ORS 279C.650 to 279C.670) and 279C.800 (Definitions for ORS 279C.800 to 279C.870) to 279C.870 (Civil action to enforce payment of prevailing rates of wage) 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 (Publication of rules and orders).

(b)

In addition to all other requirements with which rule adoptions must comply, a rule other than a rule amended for a purpose described in subsection (7) of this section is not valid if the rule has not been submitted to the Legislative Counsel in the manner required by ORS 183.355 (Filing and taking effect of rules) and 183.715 (Submission of adopted rule to Legislative Counsel required).

(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 (Policy statement).

(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; 2011 c.380 §2; 2017 c.518 §2; 2019 c.213 §126]

Notes of Decisions

The adopted rules need not be identical to the proposed rules to satisfy the notice requirements of this section. Bassett v. State Fish and Wildlife Comm., 27 Or App 639, 556 P2d 1382 (1976)

Where Children's Services Division adopted two temporary rules terminating child care payment program but never adopted permanent rule to that effect, plaintiffs-former recipients were entitled to declaratory judgment that CSD's termination of program was ineffective because of failure to properly adopt rule. Burke v. Children's Services Division, 288 Or 533, 607 P2d 141 (1980)

Under this section, temporary emergency rules may be adopted only if agency finds failure to act promptly will result in serious prejudice to public interest or interest of parties; without such showing, temporary rules are invalid. Metro. Hospitals v. State Health Planning, 52 Or App 621, 628 P2d 783 (1981)

Where petitioner challenges Water Resources Commission's temporary rule amending OAR 690-80-060 (5)(c), commission's findings and statement of need do not provide adequate support for promulgation of temporary rule and rule was therefore, adopted without compliance with applicable rulemaking procedures and violates Scenic Waterways Act. Waterwatch of Oregon v. Oregon Water Res. Comm., 97 Or App 1, 774 P2d 1118 (1989)

Rule adopted by Department of Insurance and Finance is invalid where notice of proposed rulemaking did not contain adequate fiscal impact statement containing estimate of economic impact caused if rule adopted. Dika v. Department of Insurance and Finance, 312 Or 106, 817 P2d 287 (1991)

Purpose of this section, to provide protection against arbitrary and inadequately informed governmental conduct, has been met where notice informs license holders of potential financial impact, extent of which is unknown. Troutlodge, Inc. v. Dept. of Fish and Wildlife, 113 Or App 123, 830 P2d 622 (1992), Sup Ct review denied

Error on statement of need does not render rulemaking invalid if statement serves purpose of giving notice to potentially affected parties. Assn. of Oregon Loggers v. Dept. of Insurance and Finance, 130 Or App 594, 883 P2d 859 (1994), Sup Ct review denied

Agency consideration of summary prepared by hearing officer who reviewed all submitted material complies with requirement of full consideration by agency of submitted material. Don't Waste Oregon Committee v. Energy Facility Siting Council, 320 Or 132, 881 P2d 119 (1994)

To challenge rule on procedural grounds, petitioners need not show that they were prejudiced by board's alleged failure to include adequate statement of financial impact in notice of rulemaking. Oregon Funeral Directors v. Mortuary and Cemetery Bd., 132 Or App 318, 888 P2d 104 (1995)

Fiscal impact statement is sufficient if statement informs public and businesses of economic impact of proposed rule with sufficient detail to allow public and businesses to determine likely fiscal impact on them. Oregon Funeral Directors v. Mortuary and Cemetery Bd., 132 Or App 318, 888 P2d 104 (1995)

Statement of need is intended to identify need perceived by agency, whether or not perception is factually correct. Fremont Lumber Co. v. Energy Facility Siting Council, 325 Or 256, 936 P2d 968 (1997)

Adequacy of fiscal impact statement must be assessed in terms of actual impact, not impact perceived by agency. Fremont Lumber Co. v. Energy Facility Siting Council, 325 Or 256, 936 P2d 968 (1997)

Fiscal impact statement stating that economic impact is unknown, without explanation why impact is unknown, is inadequate. The Building Department, LLC v. Department of Consumer and Business Services, 180 Or App 486, 43 P3d 1167 (2002)

Statement of fiscal impact must identify entities affected by adoption of rule and must give affected entities enough information to evaluate position and participate in adoption process or explain why information is unavailable. Independent Contractors Research Institute v. Department of Administrative Services, 207 Or App 78, 139 P3d 995 (2006), Sup Ct review denied

Atty. Gen. Opinions

Application of filing requirements and statement requirements to rule-making proceedings substantially completed before effective date, (1978) Vol 38, p 1939

§§ 183.330 to 183.400

Notes of Decisions

Where there were validly promulgated rules regarding situations analogous to requirement that petitioner, as condition of receiving further medical assistance, make monthly repayment of overpayments of public assistance funds, adjudication was desirable to establish rule to resolve instant case and subsequent similar situations. Larsen v. Adult and Family Services Division, 34 Or App 615, 579 P2d 866 (1978)

Law Review Citations

4 EL 215, 217 (1974)

§§ 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

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