71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 2665
Sponsored by Representative WILLIAMS
CHAPTER ................
AN ACT
Relating to amendment of administrative rules; amending ORS
137.673, 183.330, 183.335, 183.538, 446.270 and 722.024.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 183.335 is amended to read:
183.335. (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 agency's 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 { - (7) - }
{ + (8) + } of this section; and
(d) At least 49 days before the effective date, to the persons
specified in subsection { - (14) - } { + (15) + } of this
section.
(2)(a) The notice required by subsection (1) of this section
shall state 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 which may be
economically affected by the adoption, amendment or repeal of the
Enrolled House Bill 2665 (HB 2665-A) Page 1
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; and
(F) If an advisory committee is not appointed under the
provisions of ORS 183.025 (2), an explanation as to why no
advisory committee was used to assist the agency in drafting the
rule.
(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 the
provisions of 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 bracketing material to be deleted and
showing all new material in boldfaced type.
(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 { - (7) - }
{ + (8) + } of this section and to the persons specified in
subsection { - (14) - } { + (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) 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.
(c) 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) Comments of the committees submitted under subsection
{ - (15) - } { + (16) + } of this section.
(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
Enrolled House Bill 2665 (HB 2665-A) Page 2
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) Correcting spelling;
(c) Correcting grammatical mistakes in a manner that does not
alter the scope, application or meaning of the rule; or
(d) Correcting statutory references. + }
{ - (7) - } { + (8) + } Any person may request in writing
that an agency mail to the person copies of its notices of
intended action given pursuant to subsection (1) of this section.
Upon receipt of any request 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 and maintaining the mailing lists
current and, by rule, establish fees necessary to defray the
costs of mailings and maintenance of the lists.
{ - (8) - } { + (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.
{ - (9) - } { + (10) + } This section does not apply to ORS
279.025 to 279.031 and 279.310 to 279.990 relating to public
contracts and purchasing.
{ - (10)(a) - } { + (11)(a) + } No rule is valid unless
adopted in substantial compliance with the provisions of this
section in effect on the date the rule is adopted.
(b) In addition to all other requirements with which rule
adoptions must comply, no rule adopted after October 3, 1979, is
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valid unless submitted to the Legislative Counsel under ORS
183.715.
{ - (11) - } { + (12) + } Notwithstanding the provisions of
subsection
{ - (10) - } { + (11) + }of this section, 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, so long as the noncompliance did not
substantially prejudice the interests of persons to be affected
by the rule. However, this subsection does not authorize
correction of a failure to comply with subsection (2)(b)(E) of
this section requiring inclusion of a fiscal impact statement
with the notice required by subsection (1) of this section.
{ - (12) - } { + (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.
{ - (13) - } { + (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.
{ - (14) - } { + (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 co-chairs 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 co-chairs 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.
{ - (15)(a) - } { + (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 { - (14) - }
{ + (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.
SECTION 2. ORS 137.673 is amended to read:
137.673. Rules adopted by the Oregon Criminal Justice
Commission shall not be declared invalid solely because of
irregularities in procedural rulemaking, including but not
limited to the provisions of ORS 183.335 { - (10)(a) - } { +
(11)(a) + } or 183.400 (4)(c).
SECTION 3. ORS 183.330 is amended to read:
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183.330. (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 { - (7) - } { + (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.
SECTION 4. ORS 183.538 is amended to read:
183.538. (1) Notwithstanding ORS 183.335 { - (11) - } { +
(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.
SECTION 5. ORS 446.270 is amended to read:
446.270. (1) Whoever violates any provision of ORS 446.003 to
446.200 or 446.225 to 446.285, or the administrative rules issued
thereunder, or any regulation or final order issued thereunder,
shall be liable to the State of Oregon for a civil penalty of not
to exceed $1,000 for each violation. Each violation of ORS
446.003 to 446.200 or 446.225 to 446.285, or any rule or order
issued thereunder, shall constitute a separate violation with
respect to each manufactured structure or with respect to each
failure or refusal to allow or perform an act required thereby,
except that the maximum civil penalty may not exceed $1 million
for any related series of violations occurring within one year
from the date of the first violation.
(2) Notwithstanding any provision of ORS 183.310 to 183.550,
prior to the adoption of any rule under subsection (1) of this
section for which a civil penalty may be imposed, the Director of
the Department of Consumer and Business Services shall give not
less than 30 days' notice, in writing, to every registered
manufactured structure manufacturer, dealer, and any other
interested party who shall have requested notice in the manner
provided in ORS 183.335 { - (7) - } { + (8) + }.
(3) Enforcement of a civil penalty under subsection (1) of this
section in excess of $100 shall be brought in small claims court.
If the claim exceeds the jurisdiction of the small claims court,
the action may be brought in any court of appropriate
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jurisdiction in that city or county and a reasonable attorney fee
at trial and on appeal shall be awarded to the prevailing party.
SECTION 6. ORS 722.024 is amended to read:
722.024. (1) Upon receipt of an application and the documents
described by ORS 722.022, the Director of the Department of
Consumer and Business Services shall promptly examine and
investigate whether the formation of the association should be
allowed and the application granted.
(2) Not less than 20 days prior to taking action on an
application for a certificate of incorporation, the director
shall give notice of the filing of the application as provided by
subsection (3) of this section. The notice shall state:
(a) That the application has been filed and name the community
where the principal office is to be located; and
(b) That either a hearing will be held on the application at a
time, date and place given in the notice, or that a hearing will
be held if any person objects on relevant grounds to the granting
of the application and files a request for a hearing with the
director prior to a date given in the notice.
(3) Notice shall be given:
(a) By publishing the notice one time in a newspaper,
designated by the director, of general circulation in the
community in which the principal office of the proposed
association is to be located;
(b) By mailing copies to all domestic, foreign and federal
associations transacting business in this state; and
(c) By mailing copies of the notice to persons who have
requested notice pursuant to ORS 183.335 { - (7) - } { +
(8) + }.
(4) If a hearing is held because of a request, notice of the
hearing shall be given as provided by subsection (3) of this
section and shall name the time, date and place of the hearing.
At any hearing any person may appear in person or by agent or
attorney and orally or in writing show cause upon any relevant
ground why the application should or should not be granted.
(5) In the course of investigating any person named as
incorporators and proposed directors and officers in the articles
of incorporation under ORS 722.022, the director may require the
person to provide additional information for the director's
further inquiry. For the purpose of such further inquiry, the
director may require the person to submit to fingerprinting.
(6) Fingerprints acquired under subsection (5) of this section
may be submitted to appropriate law enforcement agencies,
including the Federal Bureau of Investigation, for the purpose of
discovering any unlawful activities of the person.
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Enrolled House Bill 2665 (HB 2665-A) Page 6
Passed by House March 28, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 11, 2001
...........................................................
President of Senate
Enrolled House Bill 2665 (HB 2665-A) Page 7
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 2665 (HB 2665-A) Page 8