72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
House Bill 2526
Sponsored by Representative SHETTERLY; Representative BARNHART,
Senators BEYER, COURTNEY, HARPER (at the request of Hearing
Officer Panel Oversight Committee)
CHAPTER ................
AN ACT
Relating to administrative hearings; creating new provisions;
amending ORS 18.902, 25.020, 25.125, 25.245, 25.255, 25.275,
25.287, 25.378, 25.765, 25.768, 45.275, 45.285, 45.288,
101.030, 107.106, 107.108, 110.304, 171.778, 179.640, 183.310,
183.341, 183.415, 240.309, 244.260, 274.755, 279.045, 342.177,
358.495, 416.425, 416.427, 416.440, 416.455, 431.730, 442.015,
442.760, 448.255, 462.405, 464.500, 466.185, 466.305, 466.610,
468.035, 517.983, 527.662, 527.687, 527.700, 527.765, 537.170,
537.622, 543.055, 543.230, 543.990, 543A.130, 561.615, 656.704,
657.270, 657.275, 657.280, 657.471, 657.485, 657.487, 657.610,
657.630, 657.663, 657.665, 657.681, 657.683, 657.684, 670.315,
670.325, 671.703, 677.275, 678.780, 687.086, 693.105, 701.147,
701.160, 737.209, 776.115, 776.129, 776.375, 809.040, 809.440,
813.410, 813.440, 813.450, 822.080 and 825.412 and sections 2,
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 16a, 19, 20
and 21, chapter 849, Oregon Laws 1999; repealing sections 26,
29, 40, 45, 50, 53, 59, 62, 71, 80, 83, 86, 89, 92, 95, 98,
101, 104, 104d, 109, 114, 121, 121f, 129, 134, 139, 142, 145,
152, 159, 162, 168, 171, 174, 177, 180, 183, 186, 192, 195,
198, 201 and 214, chapter 849, Oregon Laws 1999, section 6,
chapter 1067, Oregon Laws 1999, section 15b, chapter 1084,
Oregon Laws 1999, sections 2 and 3, chapter 163, Oregon Laws
2001, section 5, chapter 198, Oregon Laws 2001, section 82b,
chapter 249, Oregon Laws 2001, section 11, chapter 294, Oregon
Laws 2001, section 7c, chapter 414, Oregon Laws 2001, and
sections 4 and 9, chapter 455, Oregon Laws 2001; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
OFFICE OF ADMINISTRATIVE HEARINGS + }
SECTION 1. Section 2, chapter 849, Oregon Laws 1999, is amended
to read:
{ + Sec. 2. + } For the purposes of sections 2 to 21 { + ,
chapter 849, Oregon Laws 1999 + } { - of this 1999 Act - } :
(1) 'Chief { - hearing officer - } { + administrative law
judge + } ' means the person employed under section 4 { + ,
chapter 849, Oregon Laws 1999, + } { - of this 1999 Act - } to
Enrolled House Bill 2526 (HB 2526-B) Page 1
organize and manage the { - Hearing Officer Panel - } { +
Office of Administrative Hearings + }.
(2) { - ' Panel' means the Hearing Officer Panel established
under section 3 of this 1999 Act. - } { + ' Office' means the
Office of Administrative Hearings established under section 3,
chapter 849, Oregon Laws 1999. + }
SECTION 2. Section 3, chapter 849, Oregon Laws 1999, is amended
to read:
{ + Sec. 3. + } (1) The { - Hearing Officer Panel - } { +
Office of Administrative Hearings + } is established within the
Employment Department. The { - panel - } { + office + } shall
be managed by the chief
{ - hearing officer - } { + administrative law judge + }
employed under section 4 { + , chapter 849, Oregon Laws 1999 + }
{ - of this 1999 Act - } . The { - panel - } { + office + }
shall make { - hearing officers - } { + administrative law
judges + } available to agencies under sections 2 to 21 { + ,
chapter 849, Oregon Laws 1999 + } { - of this 1999 Act - } .
{ - Hearing officers - } { + Administrative law judges + }
assigned from the { - panel - } { + office + } under sections
2 to 21 { + , chapter 849, Oregon Laws 1999, + } { - of this
1999 Act - } may:
(a) Conduct contested case proceedings on behalf of agencies in
the manner provided by sections 2 to 21 { + , chapter 849, Oregon
Laws 1999 + } { - of this 1999 Act - } ;
(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
sections 2 to 21 { + , chapter 849, Oregon Laws 1999 + } { - of
this 1999 Act - } .
(2) All persons serving { - on the panel - } { + as
administrative law judges in the office + } must meet the
standards and training requirements of section 19 { + , chapter
849, Oregon Laws 1999 + } { - of this 1999 Act - } .
SECTION 3. Section 4, chapter 849, Oregon Laws 1999, is amended
to read:
{ + Sec. 4. + } (1) The Director of the Employment Department
shall employ a person to serve as chief { - hearing officer - }
{ + administrative law judge + } for the { - Hearing Officer
Panel established under section 3 of this 1999 Act. - }
{ + 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
{ - hearing officer - } { + administrative law judge + } must
be an active member of the Oregon State Bar. The chief
{ - hearing officer - } .; { + administrative law judge + }
has all the powers necessary and convenient to organize and
manage the { - panel - } { + office + }. Subject to the State
Personnel Relations Law, the chief { - hearing officer - }
{ + administrative law judge + } shall employ all persons
necessary { - to - } { + for + } the administration of the
{ - panel - } { + 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
Enrolled House Bill 2526 (HB 2526-B) Page 2
effective service or failure to continue to meet the criteria for
appointment. + }
(2) The chief { - hearing officer - } { + administrative
law judge + } shall employ { - hearing officers to serve on the
panel - } { + administrative law judges + }. The chief
{ - hearing officer - } { + administrative law judge + } shall
ensure that { - hearing officers on the panel - } { +
administrative law judges employed for the office + } receive all
training necessary to meet the standards required under the
program created under section 19 { + , chapter 849, Oregon Laws
1999 + } { - of this 1999 Act - } .
(3) The chief { - hearing officer - } { + administrative
law judge + } shall take all actions necessary to protect and
ensure the independence of each { - hearing officer - } { +
administrative law judge + } assigned from the { - panel - }
{ + office + }.
SECTION 4. Section 5, chapter 849, Oregon Laws 1999, is amended
to read:
{ + Sec. 5. + } (1) { - A hearing officer - } { + An
administrative law judge + } employed by or contracting with the
chief { - hearing officer - } { + administrative law judge + }
shall conduct hearings on behalf of agencies as assigned by the
chief { - hearing officer - } { + administrative law
judge + }. { - A hearing officer - } { + An administrative
law judge + } shall be impartial in the performance of the
{ - hearing officer's - } { + administrative law judge's
+ }duties and shall remain fair in all hearings conducted by the
{ - hearing officer - } { + administrative law judge + }.
(2) Only persons who have a knowledge of administrative law and
procedure may be employed by the chief { - hearing officer - }
{ + administrative law judge + } as { - hearing officers - }
{ + administrative law judges + }. The chief { - hearing
officer - } { + administrative law judge + } by rule may
establish additional qualifications for { - hearing officers
serving on the Hearing Officer Panel - } { + administrative law
judges employed for the office + }.
SECTION 5. Section 6, chapter 849, Oregon Laws 1999, is amended
to read:
{ + Sec. 6. + } (1) The chief { - hearing officer - }
{ + administrative law judge + } for the { - Hearing Officer
Panel - } { + Office of Administrative Hearings + } may
contract for the services of persons to act as
{ - hearing officers - } { + administrative law judges + }.
(2) Contract { - hearing officers - } { + administrative
law judges + } shall meet the same qualifications as
{ - hearing officers - } { + administrative law judges + }
regularly employed by the chief { - hearing officer - } { +
administrative law judge + } and shall be paid at an hourly rate
comparable to the per hour cost of salary and benefits for
{ - hearing officers - } { + administrative law judges + }
regularly employed by the chief { - hearing officer - } { +
administrative law judge + } and conducting similar hearings.
SECTION 6. Section 7, chapter 849, Oregon Laws 1999, is amended
to read:
{ + Sec. 7. + } (1) In assigning { - a hearing officer - }
{ + an administrative law judge + } to conduct hearings on
behalf of an agency, the chief { - hearing officer - } { +
administrative law judge + } shall, whenever practicable, assign
{ - a hearing officer - } { + an administrative law judge + }
Enrolled House Bill 2526 (HB 2526-B) Page 3
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 { - hearing officers - } { +
administrative law judges + } assigned from the { - Hearing
Officer Panel - } { + Office of Administrative Hearings + } to
conduct hearings must delegate responsibility for the conduct of
the hearing to { - a hearing officer - } { + an
administrative law judge + } assigned from the { - Hearing
Officer Panel - } { + 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 { - a hearing officer - } { +
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 { - hearing
officers - } { + administrative law judges + } assigned from the
{ - panel - } { + office + } may contract with the chief
{ - hearing officer - } { + administrative law judge + } for
the assignment of { - a hearing officer - } { + an
administrative law judge + } from the { - panel - } { +
office + } for the purpose of conducting one or more contested
cases on behalf of the agency.
SECTION 7. Section 8, chapter 849, Oregon Laws 1999, is amended
to read:
{ + Sec. 8. + } (1) Except as provided in subsection (2) of
this section, all contested case hearings conducted by
{ - hearing officers - } { + administrative law judges + }
assigned from the { - Hearing Officer Panel established under
section 3 of this 1999 Act - } { + 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
{ - hearing officer for the panel - } { + 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 { - a
hearing officer - } { + an administrative law judge + }
assigned from the
{ - panel - } { + office + }, or as may be expressly provided
for by law, { - a hearing officer - } { + an administrative
law judge + } conducting a hearing for an agency under sections 2
to 21 { + , chapter 849, Oregon Laws 1999, + } { - of this 1999
Act - } may not authorize a party to take a deposition that is
to be paid for by the agency.
SECTION 8. Section 9, chapter 849, Oregon Laws 1999, as amended
by section 46, chapter 900, Oregon Laws 2001, is amended to read:
{ + Sec. 9. + } (1) Except as provided in this section, all
agencies must use { - hearing officers - } { + administrative
law judges + } assigned from the { - Hearing Officer Panel - }
{ + Office of Administrative Hearings + } established under
section 3, chapter 849, Oregon Laws 1999, to conduct contested
case hearings, without regard to whether those hearings are
Enrolled House Bill 2526 (HB 2526-B) Page 4
subject to the procedural requirements for contested case
hearings.
(2) The following agencies need not use { - hearing
officers - } { + administrative law judges + } assigned from the
{ - panel - } { + office + }:
(a) The Department of Education, the State Board of Education
and the Superintendent of Public Instruction.
(b) Employment Appeals Board.
(c) Employment Relations Board.
(d) Public Utility Commission.
(e) Bureau of Labor and Industries and the Commissioner of the
Bureau of Labor and Industries.
(f) Land Conservation and Development Commission.
(g) Land Use Board of Appeals.
(h) Department of Revenue.
(i) Local government boundary commissions created pursuant to
ORS 199.425 or 199.430.
(j) State Accident Insurance Fund Corporation.
(k) Psychiatric Security Review Board.
(L) State Board of Parole and Post-Prison Supervision.
(m) Department of Corrections.
(n) Energy Facility Siting Council.
(o) 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.
(p) Secretary of State.
(q) State Treasurer.
(r) Attorney General.
(s) Fair Dismissal Appeals Board.
(t) Department of State Police.
(u) Oregon Youth Authority.
(v) Boards of stewards appointed by the Oregon Racing
Commission.
(w) The Department of Higher Education and the institutions of
higher education listed in ORS 352.002.
(x) The Governor.
(y) State Land Board.
{ + (z) Wage and Hour Commission.
(aa) State Apprenticeship and Training Council. + }
(3) The Workers' Compensation Board is exempt from using
{ - hearing officers - } { + administrative law judges + }
assigned from the
{ - panel - } { + office + } for any hearing conducted by the
board under ORS chapters 147, 654 and 656. The Director of the
Department of Consumer and Business Services must use
{ - hearing officers - } { + administrative law judges + }
assigned from the { - panel - } { + office + } for all
contested case hearings regarding matters other than those
concerning a claim under ORS chapter 656, as provided in ORS
656.704 (2). Except as specifically provided in this subsection,
the Department of Consumer and Business Services must use
{ - hearing officers - } { + administrative law judges + }
assigned from the { - panel - } { + office + } only for
contested cases arising out of the department's 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;
Enrolled House Bill 2526 (HB 2526-B) Page 5
(f) ORS chapter 717;
(g) ORS chapters 722, 723, 725 and 726; and
(h) ORS chapters 731, 732, 733, 734, 735, 737, 742, 743, 744,
746, 748 and 750.
(4) Notwithstanding any other provision of law, in any
proceeding in which an agency is required to use { - a hearing
officer - } { + an administrative law judge + } assigned from
the { - panel - } { + office + }, an officer or employee of
the agency may not conduct the hearing on behalf of the agency.
(5) Notwithstanding any other provision of sections 2 to 21,
chapter 849, Oregon Laws 1999, { - no - } { + an + } agency
{ - shall be - } { + is not + } required to use { - a
hearing officer - } { + an administrative law judge + }
assigned from the { - panel - } { + office + } if:
(a) Federal law requires that a different { + administrative
law judge or + } hearing officer be used; or
(b) Use of { - a hearing officer - } { + an administrative
law judge + } from the { - panel - } { + office + } could
result in a loss of federal funds.
(6) Notwithstanding any other provision of this section, the
Department of Environmental Quality must use { - hearing
officers - } { + administrative law judges + } assigned from the
{ - panel - } { + office + } only for contested case hearings
conducted under the provisions of ORS 183.413 to 183.470.
SECTION 9. Section 10, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 10. + } (1) Upon request of an agency, the chief
{ - hearing officer - } { + administrative law judge + } for
the { - Hearing Officer Panel - } { + Office of Administrative
Hearings + } may assign { - hearing officers - }
{ + administrative law judges + } from the { - panel - } { +
office + } to conduct contested case proceedings on behalf of
agencies that are exempted from mandatory use of { - panel
hearing officers - } { + administrative law judges assigned
from the office + }under section 9 { + , chapter 849, Oregon
Laws 1999 + } { - of this 1999 Act - } .
(2) The chief { - hearing officer - } { + administrative
law judge + } may contract with any political subdivision of this
state to provide
{ - hearing officer - } { + the + } services { + of
administrative law judges + } to the political subdivision for
the purpose of conducting quasi-judicial hearings on behalf of
the political subdivision.
SECTION 10. Section 11, chapter 849, Oregon Laws 1999, as
amended by section 8, chapter 294, Oregon Laws 2001, is amended
to read:
{ + Sec. 11. + } (1) After assignment of { - a hearing
officer - } { + an administrative law judge + } from the
{ - Hearing Officer Panel - } { + Office of Administrative
Hearings + } to conduct a hearing on behalf of an agency, the
chief { - hearing officer - } { + administrative law
judge + } shall assign a different { - hearing officer - }
{ + administrative law judge + } for the hearing upon receiving
a written request from any party in the contested case or from
the agency. The chief { - hearing officer - }
{ + 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
{ - hearing officer - } { + administrative law judge + } under
subsection (1) of this section may be granted by the chief
Enrolled House Bill 2526 (HB 2526-B) Page 6
{ - hearing officer - } { + 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 { - a hearing
officer - } { + an administrative law judge + } assigned after
a request for a different { - hearing officer - }
{ + administrative law judge + } has been granted under
subsection (1) of this section, the chief { - hearing
officer - } { + administrative law judge + } shall assign a
different { - hearing officer - } { + administrative law
judge + } only upon a showing of good cause.
(3) Notwithstanding subsection (1) of this section, a different
{ - hearing officer - } { + 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.
SECTION 11. Section 12, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 12. + } (1) In any contested case hearing conducted
by { - a hearing officer - } { + an administrative law
judge + } assigned from the
{ - Hearing Officer Panel - } { + Office of Administrative
Hearings + }, the
{ - hearing officer - } { + 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
{ - hearing officer - } { + 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 { - hearing officer - } { + administrative law
judge + } assigned from the { - panel - } { + office + } will
not enter the final order in a contested case proceeding, and the
agency modifies the form of order issued by the { - hearing
officer - } { + 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 { - hearing officer - }
{ + administrative law judge + } assigned from the { - Hearing
Officer Panel - } { + Office of Administrative Hearings + } only
if the agency determines that the finding of historical fact made
by the { - hearing officer - } { + administrative law
judge + } is not supported by a preponderance of the evidence in
the record. For the purposes of this section, { - a hearing
officer - } { + an administrative law judge + } makes a finding
of historical fact if the { - hearing officer - } { +
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 agency's
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
{ - hearing officer - } { + administrative law judge + }, the
Enrolled House Bill 2526 (HB 2526-B) Page 7
court shall remand the matter to the agency for entry of an order
consistent with the court's judgment.
SECTION 12. Section 13, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 13. + } The chief { - hearing officer - } { +
administrative law judge + } for the { - Hearing Officer
Panel - } { + Office of Administrative Hearings + } shall
establish a schedule of fees for services rendered by
{ - hearing officers - } { + administrative law judges + }
assigned from the
{ - panel - } { + office + }. The fee charged shall be in an
amount calculated to recover the cost of providing the
{ - hearing officer - } { + administrative law judge + }, the
cost of conducting the hearing and all associated administrative
costs. All fees collected by the chief { - hearing officer - }
{ + administrative law judge + } under this section shall be
paid into the { - Hearing Officer Panel - } { + Office of
Administrative Hearings + } Operating Account created under
section 14 { + , chapter 849, Oregon Laws 1999 + } { - of this
1999 Act - } .
SECTION 13. Section 14, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 14. + } (1) The { - Hearing Officer Panel - }
{ + Office of Administrative Hearings + } Operating Account is
created within the General Fund. The account shall consist of
moneys paid into the account under section 13 { + , chapter 849,
Oregon Laws 1999 + } { - of this 1999 Act - } . Moneys credited
to the account are continuously appropriated to the chief
{ - hearing officer - } { + administrative law judge + } for
the { - Hearing Officer Panel - } { + Office of
Administrative Hearings + } created under section 3 { + , chapter
849, Oregon Laws 1999, + }
{ - of this 1999 Act - } for the purpose of paying expenses
incurred in the administration of the { - panel - } { +
office + }.
(2) At the discretion of the chief { - hearing officer - }
{ + administrative law judge + }, petty cash funds may be
established and maintained for the purpose of administering the
duties of the
{ - panel - } { + office + }.
SECTION 14. Section 15, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 15. + } The chief { - hearing officer - } { +
administrative law judge + } for the { - Hearing Officer
Panel - } { + Office of Administrative Hearings + } shall
estimate in advance the expenses that the { - panel - } { +
office + } will incur during each biennium and shall notify each
agency required to use the { - panel's - } { + office's + }
services of the agency's share of the anticipated expenses for
periods within the biennium.
SECTION 15. Section 16, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 16. + } Subject to the provisions of the State
Personnel Relations Law, the chief { - hearing officer - }
{ + administrative law judge + } for the { - Hearing Officer
Panel - } { + Office of Administrative Hearings + } may adopt
rules to:
(1) Organize and manage the { - Hearing Officer Panel - }
{ + Office of Administrative Hearings + } established under
Enrolled House Bill 2526 (HB 2526-B) Page 8
section 3 { + , chapter 849, Oregon Laws 1999 + } { - of this
1999 Act - } .
(2) Facilitate the performance of the duties of { - hearing
officers - } { + administrative law judges + } assigned from
the { - panel - } { + office + }.
(3) Establish qualifications for persons { - serving as
hearing officers on the panel - } { + employed as
administrative law judges by the office + }.
(4) Establish standards and procedures for the evaluation and
training of { - hearing officers on the panel - } { +
administrative law judges employed by the office + }, consistent
with standards and training requirements established under
section 19 { + , chapter 849, Oregon Laws 1999 + } { - of this
1999 Act - } .
SECTION 16. Section 16a, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 16a. + } Sections 2 to 21 { + , chapter 849, Oregon
Laws 1999, + }
{ - of this 1999 Act - } 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
{ - a hearing officer from the Hearing Officer Panel - } { +
an administrative law judge from the Office of Administrative
Hearings + }.
SECTION 17. Section 19, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 19. + } (1) The chief { - hearing officer - }
{ + administrative law judge + } for the { - Hearing Officer
Panel - } { + Office of Administrative Hearings + }, working in
coordination with the Attorney General, shall design and
implement a standards and training program for { - hearing
officers on the panel - } { + administrative law judges
employed by the office + } and for persons seeking to { - serve
as hearing officers on the panel - } { + be employed as
administrative law judges by the office + }. The program shall
include:
(a) The establishment of an ethical code for persons
{ - serving as hearing officers on the panel - } { + employed
as administrative law judges by the office + }.
(b) Training for { - hearing officers on the panel - }
{ + 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 { - hearing
officer - } { + 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 { - hearing officer - }
{ + administrative law judge + } for { - hearing officers on
the panel - } { + 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 { - hearing
officer - } { + administrative law judge + } for { - hearing
officers on the panel - } { + administrative law judges
employed by the office + }.
Enrolled House Bill 2526 (HB 2526-B) Page 9
(c) The provision of specialized training for { - hearing
officers - } { + administrative law judges + } in subject
matter areas affecting particular agencies required to use
{ - hearing officers - } { + administrative law judges + }
assigned from the { - panel - } { + office + }.
(3) The chief { - hearing officer - } { + administrative
law judge + } is bound by the ethical code established under this
section and must satisfactorily complete training required of
{ - hearing officers on the panel - } { + administrative law
judges employed by the office + } other than specialized training
in subject matter areas affecting particular agencies.
SECTION 18. Section 20, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 20. + } (1) { - A hearing officer - } { + An
administrative law judge + } assigned from the { - Hearing
Officer Panel - } { + 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 { - hearing
officer - } { + administrative law judge + } received an ex
parte communication;
(b) A copy of any ex parte written communication received by
the { - hearing officer - } { + administrative law judge + };
(c) A copy of any written response to the communication made by
the { - hearing officer - } { + administrative law judge + };
(d) A memorandum reflecting the substance of any ex parte oral
communication made to the { - hearing officer - } { +
administrative law judge + }; and
(e) A memorandum reflecting the substance of any oral response
made by the { - hearing officer - } { + 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, { - a hearing officer - } { +
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 { - hearing officer - } { +
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 { - a hearing
officer - } { + 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 { - a hearing
officer - } { + an administrative law judge + }, or to any agent
of { - a hearing officer - } { + an administrative law
judge + }, by:
(a) A party;
(b) A party's 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
Enrolled House Bill 2526 (HB 2526-B) Page 10
(e) Any officer, employee or agent of the agency that is using
the { - hearing officer - } { + administrative law judge + }
to conduct the hearing.
(5) The provisions of this section do not apply to:
(a) Communications made to { - a hearing officer - } { + an
administrative law judge + } by other { - hearing officers - }
{ + administrative law judges + };
(b) Communications made to { - a hearing officer - } { + an
administrative law judge + } by any person employed by the
{ - panel - } { + office + } to assist the { - hearing
officer - } { + administrative law judge + }; or
(c) Communications made to { - a hearing officer - } { + an
administrative law judge + } by an assistant attorney general if
the communications are made in response to a request from the
{ - hearing officer - } { + administrative law judge + } and
the assistant attorney general is not advising the agency that is
conducting the hearing.
SECTION 19. Section 21, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 21. + } (1) The { - Hearing Officer Panel - }
{ + 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 { - hearing officer - } { + administrative
law judge + } for the { - Hearing Officer Panel - } { +
Office of Administrative Hearings + } employed under section
4 { + , chapter 849, Oregon Laws 1999, + } { - of this 1999
Act - } shall serve as an ex officio member of the committee.
The chief { - hearing officer - } { + 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 person's term on the committee, the
person may continue to serve as a member of the committee for the
balance of the member's 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.
Enrolled House Bill 2526 (HB 2526-B) Page 11
(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 implementation and - } operation of the
{ - Hearing Officer Panel established under section 3 of this
1999 Act - } { + 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 { - Hearing Officer Panel - } { + Office of
Administrative Hearings + };
(c) Make any recommendations for additional legislation
governing the operations of the { - Hearing Officer Panel - }
{ + 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.
{ +
EMPLOYMENT OF LAW CLERKS + }
SECTION 20. ORS 240.309 is amended to read:
240.309. (1) Temporary employment shall be used for the purpose
of meeting emergency, nonrecurring or short-term workload needs
of the state.
(2) A temporary employee may be given a nonstatus appointment
without open competition and consideration only for the purposes
enumerated in this section. Temporary appointments shall not be
used to defeat the open competition and consideration system.
(3) A temporary employee may not be employed in a permanent,
seasonal, intermittent or limited duration position except to
replace an employee during an approved leave period.
(4) Employment of a temporary employee for the same workload
need, other than for leave, may not exceed six calendar months.
The decision to extend the period of employment may be delegated
by the Personnel Division of the Oregon Department of
Administrative Services to other state agencies. Approval to
extend shall be allowed only upon an appointing authority's
finding that the original emergency continues to exist and that
there is no other reasonable means to meet the emergency. Agency
actions under this subsection are subject to post-audit review by
the Oregon Department of Administrative Services as provided in
ORS 240.311.
(5) Employment of a temporary employee for different workload
needs shall not exceed the equivalent of six calendar months in a
12-month period.
(6) A temporary employee shall not be denied permanent work
because of the temporary status. Temporary service shall not be
used as any portion of a required trial service period.
(7) The Personnel Division of the Oregon Department of
Administrative Services shall report the use of temporary
employees, by agency, once every six months, including the
duration and reason for use or extensions, if any, of temporary
appointments. The reports shall be made available upon request to
interested parties, including employee organizations. If any
interested party alleges misuse of temporary employees, the
division shall investigate, report its findings and take
appropriate action.
Enrolled House Bill 2526 (HB 2526-B) Page 12
(8) The Department of Justice may use temporary status
appointments for student law clerks for a period not to exceed 24
months.
{ + (9) The chief administrative law judge of the Office of
Administrative Hearings may use temporary status appointments for
student law clerks for a period not to exceed 24 months. Student
law clerks appointed under this subsection may not act as
administrative law judges or conduct hearings for the Office of
Administrative Hearings. + }
{ - (9) - } { + (10) + } A state agency may use temporary
status appointments for a period not to exceed 48 months for
student interns who are enrolled in high school or who are under
19 years of age and are training to receive a General Educational
Development (GED) certificate. Student interns are not eligible
for benefits under ORS 243.105 to 243.285.
{ +
REMOVAL OF SUNSET + }
SECTION 21. { + Sections 26, 29, 40, 45, 50, 53, 59, 62, 71,
80, 83, 86, 89, 92, 95, 98, 101, 104, 104d, 109, 114, 121, 121f,
129, 134, 139, 142, 145, 152, 159, 162, 168, 171, 174, 177, 180,
183, 186, 192, 195, 198, 201 and 214, chapter 849, Oregon Laws
1999, section 6, chapter 1067, Oregon Laws 1999, section 15b,
chapter 1084, Oregon Laws 1999, sections 2 and 3, chapter 163,
Oregon Laws 2001, section 5, chapter 198, Oregon Laws 2001,
section 82b, chapter 249, Oregon Laws 2001, section 11, chapter
294, Oregon Laws 2001, section 7c, chapter 414, Oregon Laws 2001,
and sections 4 and 9, chapter 455, Oregon Laws 2001, are
repealed. + }
SECTION 22. ORS 18.902, as amended by section 82a, chapter 249,
Oregon Laws 2001, is amended to read:
18.902. (1) Notwithstanding ORS 18.607, a notice of garnishment
issued by a state agency need not contain the name of a court
whose authority is invoked.
(2) State agencies shall make such modifications as are
necessary in the wage exemption calculation form provided by ORS
18.840 if a notice of garnishment is issued for a debt due for a
state tax that is subject to the provisions of ORS 23.186 (6).
(3) Notwithstanding ORS 18.625, a notice of garnishment issued
by a state agency acts to garnish all wages earned by the debtor
by reason of services to the garnishee until the full amount of
the debt is paid or until the notice of garnishment is released
by the state agency or by court order. A notice of garnishment
issued by a state agency must contain language reasonably
designed to notify the garnishee of the provisions of this
subsection.
(4) Notwithstanding ORS 18.690, a garnishee who receives a
notice of garnishment issued by a state agency need not deliver a
copy of the garnishee response to the clerk of the court, but
must deliver the original of the response to the state agency.
(5) Notwithstanding ORS 18.700, a challenge to a notice of
garnishment issued by a state agency must be delivered in person
or by first class mail to the state agency within the time
specified by ORS 18.700 (2). Within 14 days after receiving the
challenge, the state agency must either concede the challenge or
give the person making the challenge opportunity for hearing. If
the person making the challenge requests a hearing, the agency
shall { - conduct a hearing - } { + immediately refer the
challenge to the Office of Administrative Hearings established
Enrolled House Bill 2526 (HB 2526-B) Page 13
under section 3, chapter 849, Oregon Laws 1999. The hearing shall
be conducted + } as soon as possible. Notwithstanding ORS
183.315, the hearing shall be conducted as a contested case
hearing. An issue that was decided in a previous hearing, or for
which the debtor was previously afforded an opportunity for
hearing, may not be reconsidered.
(6) If a state agency is issuing a notice of garnishment for
collection of a state tax, and the state agency has reason to
believe that the debtor intends to leave the state or do any
other act that would jeopardize collection of the tax, the state
agency may issue a special notice of garnishment. Any earnings,
as defined in ORS 23.175, garnished under a special notice of
garnishment are not subject to a claim of exemption under ORS
23.186. A special notice of garnishment issued under this
subsection garnishes only that property of the debtor that is in
the garnishee's possession, control or custody at the time the
special notice is delivered, including debts not yet due, and all
wages owed by the garnishee to the debtor at the time the special
notice is delivered. A special notice of garnishment does not act
to garnish wages earned by the debtor by reason of services
rendered to the garnishee after the delivery of the special
notice of garnishment.
(7) A special notice of garnishment issued under subsection (6)
of this section shall contain a statement indicating that it is a
special notice of garnishment under subsection (6) of this
section and a statement reflecting the provisions of subsection
(6) of this section. Notwithstanding ORS 18.900 (1), a wage
exemption calculation form shall not be delivered to the
garnishee with a special notice of garnishment.
SECTION 23. ORS 25.020, as amended by section 3, chapter 455,
Oregon Laws 2001, is amended to read:
25.020. (1) Support payments for or on behalf of any person,
ordered, registered or filed pursuant to ORS chapter 25, 107,
108, 109, 110, 416, 419B or 419C, unless otherwise authorized by
ORS 25.030, shall be made to the Department of Justice, as the
state disbursement unit:
(a) During periods for which support is assigned pursuant to
ORS 418.032, 418.042, 419B.406 or 419C.597;
(b) As provided by rules adopted pursuant to ORS 409.021 or
under ORS 180.340, when public assistance as defined by ORS
411.010 is provided to a person who receives or has a right to
receive support payments on the person's own behalf or on behalf
of another person;
(c) After the assignment of support terminates for as long as
amounts assigned remain owing;
(d) For any period during which support enforcement services
are provided pursuant to the child support enforcement program
created by Title IV-D of the Social Security Act or pursuant to
ORS 25.080;
(e) When ordered by the court pursuant to ORS 419B.400;
(f) When a support order that is entered or modified on or
after January 1, 1994, includes a provision requiring the obligor
to pay support by income withholding; or
(g) When ordered by the court under any other applicable
provision of law.
(2) The Department of Justice shall disburse payments, after
lawful deduction of fees and in accordance with applicable
statutes and rules, to those persons and entities that are
lawfully entitled to receive such payments.
Enrolled House Bill 2526 (HB 2526-B) Page 14
(3)(a) When the administrator is providing support enforcement
services under ORS 25.080, the obligee may enter into an
agreement with a collection agency, as defined in ORS 697.005,
for assistance in collecting child support payments.
(b) The department:
(A) Except as otherwise provided in this paragraph, shall
disburse support payments, to which the obligee is legally
entitled, to the collection agency according to the terms of the
agreement between the obligee and the collection agency;
(B) May not disburse moneys to the collection agency before the
obligee submits the form referred to in paragraph (c)(A) of this
subsection to the department and the department adjusts its
support payment records;
(C) May not disburse moneys to the collection agency after 180
days following the date the department adjusts its support
payment records as described in subparagraph (B) of this
paragraph;
(D) May not disburse moneys to the collection agency if the
collection agency violates any provision of this subsection;
(E) Shall credit the obligor's account for the full amount of
each support payment received by the department and disbursed to
the collection agency;
(F) Shall develop the form referred to in paragraph (c)(A) of
this subsection, which shall include a notice to the obligee
printed in type size equal to at least 12-point type that the
obligee may be eligible for support enforcement services from the
department or the district attorney without paying the interest
or fee that is typically charged by a collection agency; and
(G) May use information disclosed by the collection agency to
provide support enforcement services under ORS 25.080.
(c) The obligee shall:
(A) Provide to the department, on a form approved by the
department, information about the agreement with the collection
agency; and
(B) Promptly notify the department when the agreement is
terminated.
(d) The collection agency:
(A) May provide investigative and location services to the
obligee and disclose relevant information from those services to
the department for purposes of providing support enforcement
services under ORS 25.080;
(B) May not charge interest or a fee for its services exceeding
20 percent of each support payment received; and
(C) May not initiate, without written authorization from the
department, any enforcement action relating to support payments
on which support enforcement services are provided by the
department under ORS 25.080.
(4) The Department of Justice may immediately transmit payments
received from any obligor who has not previously tendered any
payment by a check or instrument which was not paid or was
dishonored, to the obligee, without waiting for payment or
clearance of the check or instrument received.
(5) The Department of Justice shall notify each obligor and
obligee by mail when support payments shall be made to the
Department of Justice and when the obligation to make payments in
this manner shall cease.
(6)(a) The administrator shall provide information about a
child support account directly to a party to the support order
regardless of whether the party is represented by an attorney. As
Enrolled House Bill 2526 (HB 2526-B) Page 15
used in this subsection, 'information about a child support
account' means the:
(A) Date of issuance of the support order.
(B) Amount of the support order.
(C) Dates and amounts of payments.
(D) Dates and amounts of disbursements.
(E) Payee of any disbursements.
(F) Amount of any arrearage.
(G) Source of any collection.
(b) Nothing in this subsection limits the information the
administrator may provide by law to a party who is not
represented by an attorney.
(7) Any pleading for the entry or modification of a support
order must contain a statement that payment of support under a
new or modified order will be by income withholding unless an
exception to payment by income withholding is granted under ORS
25.396.
(8)(a) Except as provided in paragraph (d) of this subsection,
a decree or order establishing paternity or including a provision
concerning support shall contain the residence, mailing or
contact address, Social Security number, telephone number and
driver license number of each party and the name, address and
telephone number of all employers of each party.
(b) The decree or order shall also include notice that the
obligor and obligee:
(A) Must inform the court and the administrator in writing of
any change in the information required by this subsection within
10 days after such change; and
(B) May request that the administrator review the amount of
support ordered after two years or at any time upon a substantial
change of circumstances.
(c) The administrator may require of the parties any additional
information that is necessary for the provision of support
enforcement services under ORS 25.080.
(d)(A) Upon a finding, that may be made ex parte, that the
health, safety or liberty of a party or child would unreasonably
be put at risk by the disclosure of information specified in this
subsection or by the disclosure of other information concerning a
child or party to a paternity or support proceeding or if an
existing order so requires, a court or administrator or
{ - hearing officer - } { + administrative law judge + }, when
the proceeding is administrative, shall order that the
information not be contained in any document provided to another
party or otherwise disclosed to a party other than the state.
(B) The Department of Human Services shall adopt rules
providing for similar confidentiality for information described
in subparagraph (A) of this paragraph that is maintained by an
entity providing support enforcement services under ORS 25.080.
(9)(a) Except as otherwise provided in paragraph (b) of this
subsection, in any subsequent child support enforcement action,
the court or administrator, upon a showing of diligent effort
made to locate the obligor or obligee, may deem due process
requirements to be met by mailing notice to the last-known
residential, mailing or employer address or contact address as
provided in ORS 25.085.
(b) Service of an order directing an obligor to appear in a
contempt proceeding is subject to ORS 33.015 to 33.155.
(10) Subject to ORS 25.030, this section, to the extent it
imposes any duty or function upon the Department of Justice,
shall be deemed to supersede any provisions of ORS chapters 107,
Enrolled House Bill 2526 (HB 2526-B) Page 16
108, 109, 110, 416, 419A, 419B and 419C that would otherwise
impose the same duties or functions upon the county clerk or the
Department of Human Services.
(11) Except as provided for in subsections (12), (13) and (14)
of this section, credit shall not be given for payments not made
to the Department of Justice as required pursuant to subsection
(1) of this section.
(12) The Department of Justice shall give credit for payments
not made to the Department of Justice when:
(a) Payments are not assigned to this or another state and the
obligee and obligor agree in writing that specific payments were
made and should be credited;
(b) Payments are assigned to the State of Oregon, the obligor
and obligee make sworn written statements that specific payments
were made, canceled checks or other substantial evidence is
presented to corroborate their statements and the obligee has
been given prior written notice of any potential criminal or
civil liability that may attach to an admission of the receipt of
assigned support;
(c) Payments are assigned to another state and that state
verifies that payments not paid to the Department of Justice were
received by the other state; or
(d) As provided by rule adopted pursuant to ORS 409.021 or
under ORS 180.340.
(13) An obligor may apply to the Department of Justice for
credit for payments made other than to the Department of Justice.
If the obligee or other state does not provide the agreement,
sworn statement or verification required by subsection (12) of
this section, credit may be given pursuant to order of { - a
hearing officer of the Department of Human Services - } { + an
administrative law judge assigned from the Office of
Administrative Hearings established under section 3, chapter 849,
Oregon Laws 1999, + } after notice and opportunity to object and
be heard are given to both obligor and obligee. Notice shall be
served upon the obligee as provided by ORS 25.085. Notice to the
obligor may be by regular mail at the address provided in the
application for credit. A hearing conducted under this subsection
is a contested case hearing and ORS 183.413 to 183.470 apply. Any
party may seek a hearing de novo in the circuit court.
(14) Nothing in this section precludes the Department of
Justice from giving credit for payments not made to the
Department of Justice when there has been a judicially determined
credit or satisfaction or when there has been a satisfaction of
support executed by the person to whom support is owed.
(15) The Department of Human Services shall adopt rules that:
(a) Direct how support payments that are made through the
Department of Justice are to be applied and distributed; and
(b) Are consistent with federal regulations.
SECTION 24. ORS 25.287, as amended by section 8, chapter 455,
Oregon Laws 2001, is amended to read:
25.287. (1)(a) The entity providing support enforcement
services under ORS 25.080 may initiate proceedings to modify a
support obligation to ensure that the support obligation is in
accordance with the formula established under ORS 25.270 to
25.287.
(b) Proceedings under this subsection may occur only after two
years have elapsed from the later of the following:
(A) The date the original support obligation took effect;
(B) The date any previous modification of the support
obligation took effect; or
Enrolled House Bill 2526 (HB 2526-B) Page 17
(C) The date of any previous review and determination under
this subsection that resulted in no modification of the support
obligation.
(c) For purposes of paragraph (b) of this subsection, a support
obligation or modification takes effect on the first date on
which the obligor is to pay the established or modified support
amount.
(d) The only issues at proceedings under this subsection are
whether two years have elapsed, as described in paragraph (b) of
this subsection, and whether the support obligation is in
substantial compliance with the formula established under ORS
25.270 to 25.287.
(e) Upon review, if the administrator determines that a support
obligation does not qualify for modification under this section,
a party may appeal the determination. A hearing on the appeal
shall be conducted by { - a hearing officer appointed by the
Employment Department - } { + an administrative law judge
assigned from the Office of Administrative Hearings established
under section 3, chapter 849, Oregon Laws 1999 + }. Appeal of the
order of the { - hearing officer - } { + administrative law
judge + } may be taken to the circuit court of the county in
which the support obligation has been entered, docketed or
registered for a hearing de novo. The appeal to the court shall
be by petition for review filed within 60 days after the order of
the { - hearing officer - } { + administrative law judge + }
has been docketed.
(f) If the court, the administrator or the { - hearing
officer - } { + administrative law judge + } finds that more
than two years have elapsed, as described in paragraph (b) of
this subsection, the court, the administrator or the
{ - hearing officer - } { + administrative law judge + } shall
modify the support order to bring the support obligation into
substantial compliance with the formula established under ORS
25.270 to 25.287, regardless of whether there has been a
substantial change in circumstances since the support obligation
was last established, modified or reviewed. Proceedings by the
administrator or { - hearing officer - } { + administrative
law judge + } under this subsection shall be conducted according
to the provisions of ORS 416.425 and 416.427.
(g) The provisions of this subsection apply to any support
obligation established by a support order under ORS chapter 24,
107, 108, 109, 110 or 416 or ORS 419B.400 or 419C.590.
(2) The administrator, court or { - hearing officer - }
{ + administrative law judge + } may use the provisions of
subsection (1) of this section when a support order was entered
in another state and registered in Oregon, the provisions of ORS
chapter 110 apply and more than two years have elapsed as
provided in subsection (1)(b) of this section.
(3) Notwithstanding the provisions of this section, proceedings
may be initiated at any time to modify a support obligation based
upon a substantial change of circumstances under any other
provision of law.
(4) The obligee is a party to any action to modify a support
obligation under this section.
SECTION 25. ORS 25.378, as amended by section 39, chapter 849,
Oregon Laws 1999, and section 7, chapter 104, Oregon Laws 2001,
is amended to read:
25.378. (1) Except as otherwise provided in ORS 25.396, when a
support order is entered or modified by the Division of Child
Support, a district attorney, an { - Employment Department
Enrolled House Bill 2526 (HB 2526-B) Page 18
hearing officer - } { + administrative law judge + } or a
circuit court, including a juvenile court, the order shall
include a provision requiring the obligor to pay support by
income withholding regardless of whether support enforcement
services are being provided under ORS 25.080. In addition to the
income withholding provided for in this subsection, income
withholding may be initiated in accordance with subsections (2)
to (6) of this section.
(2) When an obligor is subject to a support order issued or
registered in this state and fails to make payments at least
equal to the amount of support payable for one month, a court,
the Division of Child Support, a district attorney or the
Department of Human Services, whichever is appropriate, shall
initiate income withholding without the need for a judicial or
administrative hearing and without the need for advance notice to
the obligor of the withholding.
(3) When an arrearage exists and notice of the delinquent
amount has been given to the obligor, a court, upon application,
shall issue a withholding order upon the ex parte request of a
person holding support rights, the Division of Child Support or
the district attorney.
(4) If an obligor is not otherwise subject to income
withholding:
(a) A court may issue an order to withhold upon the ex parte
motion of the obligor; or
(b) The Division of Child Support, Department of Human Services
or district attorney may issue an order to withhold upon the ex
parte motion of the obligor.
(5)(a) Upon the request of the holder of support rights, a
court, the Division of Child Support or a district attorney, as
appropriate, may issue a withholding order at any time if:
(A) The obligor is not otherwise subject to withholding; and
(B) After notice and an opportunity to object has been given to
the obligor, a finding is made that it would be in the best
interests of the child to issue a withholding order.
(b) If the obligor has been granted an exception to withholding
under ORS 25.396 by a court, the holder of support rights must
apply for withholding under this subsection by motion to the
court.
(6) A court or agency shall issue an order to withhold when a
support order or an arrearage from another jurisdiction is
entered in Oregon in accordance with interstate income
withholding under ORS chapter 110.
SECTION 26. ORS 25.765, as amended by section 44, chapter 849,
Oregon Laws 1999, and section 5, chapter 323, Oregon Laws 2001,
is amended to read:
25.765. (1) If the obligor makes the contact within 30 days of
the date of the notice as provided for in ORS 25.759, the
administrator shall provide the obligor with the opportunity to
contest the suspension on the bases set forth in ORS 25.759 (5).
The administrator shall determine whether suspension should
occur. If the administrator determines that suspension should
occur, the administrator shall make a written determination of
such finding.
(2) The obligor may appeal the determination described in
subsection (1) of this section. Any hearing on such appeal shall
be conducted by { - a hearing officer appointed by the
Employment Department - } { + an administrative law judge
assigned from the Office of Administrative Hearings established
under section 3, chapter 849, Oregon Laws 1999 + }. ORS 183.310
Enrolled House Bill 2526 (HB 2526-B) Page 19
to 183.550 shall apply and such appeal of the administrator's
determination shall be de novo to the { - hearing officer - }
{ + administrative law judge + }. Any suspension is stayed
pending the decision of the { - hearing officer - }
{ + administrative law judge + }. Any order of the { - hearing
officer - } { + administrative law judge + } that supports a
suspension shall result in the notification to the issuing entity
by the administrator to suspend the license forthwith.
(3) After receipt of notice to suspend from the administrator,
no further administrative review or contested case proceeding
within or by the issuing entity is required.
SECTION 27. ORS 171.778, as amended by section 49, chapter 849,
Oregon Laws 1999, is amended to read:
171.778. (1) Upon its own instigation or signed complaint of
any person, the Oregon Government Standards and Practices
Commission may undertake action in the Preliminary Review Phase
with respect to any alleged violation of ORS 171.725 to 171.785.
The person who is the subject of a complaint or of the
commission's own action shall be notified immediately upon
receipt of the complaint or upon adoption of a motion by the
commission to undertake any action concerning the person. The
notice shall be given by telephone if the person can be reached
and a notice shall also be mailed to the person. The notice shall
include the nature of the complaint or motion and a copy of all
materials submitted along with the complaint or materials which
give rise to the commission's instigation of action on its own
motion. However, the person must also be notified in advance if
an issue that may give rise to a motion to undertake action on
the commission's own instigation is to be discussed at a
commission meeting. Before investigating any complaint or
undertaking an investigation on its own instigation, the
commission shall make a finding that there is cause to undertake
an investigation, notify the person who is the subject of the
investigation, identify the issues to be examined and shall
confine its investigation to those issues. If the commission
finds reason to expand its investigation, it shall move to do so
and shall record in its minutes the issues to be examined before
expanding the scope of its investigation and formally notify the
complainant and the person who is the subject of the complaint of
the expansion and the scope thereof. If the commission does not
make a finding of cause, it shall dismiss the complaint or
rescind its motion and shall formally enter the dismissal or
rescission on its records. The commission shall notify the person
of the dismissal or rescission. After dismissal or rescission,
the commission shall take no further action involving the person
unless a new and different complaint is filed or action at its
own instigation is undertaken based on different conduct.
(2) The commission may:
(a) During the Preliminary Review Phase, seek, solicit or
otherwise obtain any books, papers, records, memoranda or other
additional information, administer oaths, and take depositions
necessary to determine whether there is cause; and
(b) During the Investigatory Phase, require any additional
information, administer oaths, take depositions and issue
subpoenas to compel attendance of witnesses and the production of
books, papers, records, memoranda or other information necessary
to complete the investigation. If any person fails to comply with
any subpoena issued under this section or refuses to testify on
any matters on which the person may be lawfully interrogated, the
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procedure provided in ORS 183.440 shall be followed to compel
compliance.
(3) The person conducting any inquiry or investigation shall do
so in an impartial, objective manner. All favorable and
unfavorable information collected by the investigator shall be
turned over to the commission.
(4) The findings of the commission in any inquiry or
investigation shall be reported impartially, including both
favorable and unfavorable findings, and shall be made available
to the person who is the subject thereof and to any employer of
the person.
(5) Hearings relating to any charge of alleged violation of ORS
171.725 to 171.785 { - may - } { + must + } be held before
{ - the commission or before a hearing officer appointed by the
commission - } { + an administrative law judge assigned from
the Office of Administrative Hearings established under section
3, chapter 849, Oregon Laws 1999 + }. The procedure shall be that
for a contested case under ORS 183.310 to 183.550.
(6)(a) The period of time from the filing of a complaint or
from acting on the commission's own instigation to the finding of
cause or dismissal of the complaint or rescission of the motion
shall be termed the Preliminary Review Phase and shall not exceed
90 days unless a delay is stipulated to by both the subject
person and the Oregon Government Standards and Practices
Commission, with the commission reserving a portion of the delay
period to complete its actions.
(b) The Preliminary Review Phase shall be confidential.
Commission members and staff may acknowledge receipt of a
complaint but shall make no public comment or publicly disclose
any materials relating to a case during the Preliminary Review
Phase. A person who intentionally violates this paragraph is
subject to a civil penalty in an amount not to exceed $1,000. Any
person aggrieved as a result of a violation of this paragraph by
a member of the commission or its staff may file a petition in a
court of competent jurisdiction in the county in which the
petitioner resides in order to enforce the civil penalty provided
in this paragraph.
(c) The commission's deliberations of a case at the conclusion
of the Preliminary Review Phase shall be conducted in executive
session. All case related materials and proceedings shall be open
to the public after the commission makes a finding of cause,
dismisses a complaint or rescinds a motion. Prior to the end of
the Preliminary Review Phase, the executive director of the
commission shall prepare a statement of the facts determined
during the phase, including appropriate legal citations and
relevant authorities. Before presentation to the commission, the
executive director's statement shall be reviewed by legal counsel
to the commission.
(d) The time limit imposed in this subsection and the
commission's inquiry are suspended if:
(A) There is a pending criminal investigation that relates to
the issues arising out of the underlying facts or conduct at
issue in the matter before the commission, unless the parties
stipulate otherwise; or
(B) A court has enjoined the commission from continuing its
inquiry.
(7)(a) The period of time from the finding of cause to the
beginning of any contested case proceedings shall be termed the
Investigatory Phase and shall not exceed 120 days unless a delay
is stipulated to by both the subject person and the Oregon
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Government Standards and Practices Commission, with the
commission reserving a portion of the delay period to complete
its actions.
(b) The time limit imposed in this subsection and the
commission's investigation are suspended if:
(A) There is a pending criminal investigation that relates to
the issues arising out of the underlying facts or conduct at
issue in the matter before the commission, unless the parties
stipulate otherwise; or
(B) A court has enjoined the commission from continuing its
investigation.
(c) At the end of the Investigatory Phase, the commission shall
take action by order, which action may include:
(A) Dismissal, with or without comment;
(B) Continuation of the investigation to determine further
facts, but no more than one continuation, not to exceed 30 days'
duration, shall be taken;
(C) Moving to a contested case proceeding;
(D) Seeking a negotiated settlement; or
(E) Taking other appropriate action if justified by the
findings.
(8) If, at the end of the Investigatory Phase, the commission
takes action by order to move to a contested case proceeding, a
person may notify the commission that the person elects to have
the commission file a lawsuit against the person in the Marion
County Circuit Court in lieu of the contested case proceeding.
The court may impose the penalty described in ORS 171.992. The
person shall notify the commission of the election in writing no
later than 21 days after receiving notification of the
commission's action by order to move to the contested case
proceeding. The commission shall file suit within 30 days after
receiving notice that the person has elected the lawsuit
procedure.
(9) The commission shall not inquire into or investigate any
complaint or act at its own instigation on alleged conduct that
occurred more than four years before the complaint is filed or
action is undertaken.
(10) Nothing in this section is intended to prevent the
commission and the person alleged to have violated ORS 171.725 to
171.785 from stipulating to a finding of fact concerning the
violation and consenting to an appropriate penalty. The
commission shall enter an order accordingly.
(11) As used in this section, 'cause' and 'pending' have the
meanings given those terms in ORS 244.260.
SECTION 28. ORS 183.341, as amended by section 25, chapter 849,
Oregon Laws 1999, is amended to read:
183.341. (1) The Attorney General shall prepare model rules of
procedure appropriate for use by as many agencies as possible.
{ + Except as provided in section 8, chapter 849, Oregon Laws
1999, + } 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 ORS 183.310 to 183.550.
(2) { + Except as provided in section 8, chapter 849, Oregon
Laws 1999, + } all agencies shall adopt rules of procedure to be
utilized in the adoption of rules and conduct of proceedings in
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contested cases or, if exempt from the contested case provisions
of ORS 183.310 to 183.550, for the conduct of proceedings.
(3) The Secretary of State shall publish in the Oregon
Administrative Rules:
(a) The Attorney General's model rules adopted under subsection
(1) of this section;
(b) The procedural rules of all agencies that have not adopted
the Attorney General's 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 agency's 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.
SECTION 29. ORS 183.415, as amended by section 28, chapter 849,
Oregon Laws 1999, is amended to read:
183.415. (1) In a contested case, all parties shall be afforded
an opportunity for hearing after reasonable notice, served
personally or by registered or certified mail.
(2) The notice shall include:
(a) A statement of the party's right to 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; and
(d) A short and plain statement of the matters asserted or
charged.
(3) Parties may elect to be represented by counsel and to
respond and present evidence and argument on all issues involved.
(4) Agencies may adopt rules of procedure governing
participation in contested cases by persons appearing as limited
parties.
(5)(a) Unless precluded 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, or, if
applicable, to the party's attorney of record. 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.
(6) An order adverse to a party may be issued upon default only
upon prima facie case made on the record of the agency. When an
order is effective only if a request for hearing is not made by
the party, the record may be made at the time of issuance of the
order, and if the order is based only on material included in the
application or other submissions of the party, the agency may so
certify and so notify the party, and such material shall
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constitute the evidentiary record of the proceeding if hearing is
not requested.
(7) At the commencement of the hearing, the officer presiding
shall explain the issues involved in the hearing and the matters
that the parties must either prove or disprove.
(8) Testimony shall be taken upon oath or affirmation of the
witness from whom received. The officer presiding at the hearing
shall administer oaths or affirmations to witnesses.
(9) The officer presiding at the hearing 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 officer
during the pendency of the proceeding and notify the parties of
the communication and of their right to rebut such
communications. { + If an ex parte communication is made to an
administrative law judge assigned from the Office of
Administrative Hearings established by section 3, chapter 849,
Oregon Laws 1999, the administrative law judge must comply with
section 20, chapter 849, Oregon Laws 1999. + }
(10) 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.
(11) 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 communications on a fact in
issue 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 { - a hearing officer - } { + an administrative law
judge + }.
(12) A verbatim oral, written or mechanical record shall be
made of all motions, rulings and testimony. 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. However, 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.
SECTION 30. ORS 244.260, as amended by section 52, chapter 849,
Oregon Laws 1999, is amended to read:
244.260. (1)(a) Upon its own instigation or signed complaint of
any person, the Oregon Government Standards and Practices
Commission may undertake action in the Preliminary Review Phase
with respect to the contents of any statements filed under this
chapter or resolution adopted pursuant thereto or any alleged
violation of any provision of this chapter.
(b) The public official who is the subject of a complaint or of
the commission's own action shall be notified immediately upon
receipt of the complaint or upon adoption of a motion by the
commission to undertake any action concerning the public
official. The notice shall be given by telephone if the official
can be reached and shall also be in writing mailed to the
official. The notice shall include the nature of the complaint or
Enrolled House Bill 2526 (HB 2526-B) Page 24
motion and a copy of all materials submitted along with the
complaint or materials which give rise to the commission's
instigation of action on its own motion. However, the official
must also be notified in advance if an issue that may give rise
to a motion to undertake action on the commission's own
instigation is to be discussed at a commission meeting.
(c) Before investigating any complaint or undertaking any
investigation at the commission's own instigation, if the public
official who is the subject of the complaint or of the
commission's own action is a member of the Legislative Assembly,
the commission shall determine whether the alleged violation of
any provision of this chapter involves conduct protected by
section 9, Article IV of the Oregon Constitution. If the
commission determines that the conduct is protected by section 9,
Article IV of the Oregon Constitution, the commission shall
dismiss the complaint or rescind its motion as provided in
paragraph (e) of this subsection.
(d) If the complaint has not been dismissed or the motion of
the commission has not been rescinded as described in paragraph
(c) of this subsection, before investigating any complaint or
undertaking an investigation on the commission's own instigation,
the commission shall make a finding that there is cause to
undertake an investigation, notify the public official who is the
subject of the investigation, identify the issues to be examined
and shall confine its investigation to those issues. If the
commission finds reason to expand its investigation, it shall
move to do so and shall record in its minutes the issues to be
examined before expanding the scope of its investigation and
formally notify the complainant and the public official who is
the subject of the complaint of the expansion and the scope
thereof.
(e) If the commission does not make a finding of cause, or if
the commission determines that the alleged violation of this
chapter involves conduct protected by section 9, Article IV of
the Oregon Constitution, the commission shall dismiss the
complaint or rescind its motion and shall formally enter the
dismissal or rescission on its records. The commission shall
notify the public official of the dismissal or rescission. After
dismissal or rescission, the commission shall take no further
action involving the public official unless a new and different
complaint is filed or action at its own instigation is undertaken
based on different conduct.
(2) The commission may:
(a) During the Preliminary Review Phase, seek, solicit or
otherwise obtain any books, papers, records, memoranda or other
additional information, administer oaths and take depositions
necessary to determine whether there is cause or if the alleged
violation is protected by section 9, Article IV of the Oregon
Constitution; and
(b) During the Investigatory Phase, require any additional
information, administer oaths, take depositions and issue
subpoenas to compel attendance of witnesses and the production of
books, papers, records, memoranda or other information necessary
to complete the investigation. If any person fails to comply with
any subpoena issued under this section or refuses to testify on
any matters on which the person may be lawfully interrogated, the
procedure provided in ORS 183.440 shall be followed to compel
compliance.
(3) The person conducting any inquiry or investigation shall do
so in an impartial, objective manner. All favorable and
Enrolled House Bill 2526 (HB 2526-B) Page 25
unfavorable information collected by the investigator shall be
turned over to the commission.
(4) The findings of the commission in any inquiry or
investigation shall be reported impartially, including both
favorable and unfavorable findings, and shall be made available
to the public official who is the subject thereof, to the
appointing authority, if any, and to the Attorney General for
state public officials and to the appropriate district attorney
for local public officials. The findings shall be made available
to the Commission on Judicial Fitness and Disability in any
investigation involving a judge.
(5) Hearings relating to any charge of alleged violation of
this chapter { - may - } { + must + } be held before
{ - the commission or before a hearing officer appointed by the
commission - } { + an administrative law judge assigned from
the Office of Administrative Hearings established under section
3, chapter 849, Oregon Laws 1999 + }. The procedure shall be that
for a contested case under ORS 183.310 to 183.550.
(6)(a) The period of time from the filing of a complaint or
from acting on the commission's own instigation to the finding of
cause or dismissal of the complaint or rescission of the motion
shall be termed the Preliminary Review Phase and shall not exceed
90 days unless a delay is stipulated to by both the public
official and the Oregon Government Standards and Practices
Commission with the commission reserving a portion of the delay
period to complete its actions.
(b) The Preliminary Review Phase shall be confidential.
Commission members and staff may acknowledge receipt of a
complaint but shall make no public comment or publicly disclose
any materials relating to a case during the Preliminary Review
Phase. A person who intentionally violates this paragraph is
subject to a civil penalty in an amount not to exceed $1,000. Any
person aggrieved as a result of a violation of this paragraph by
a member of the commission or its staff may file a petition in a
court of competent jurisdiction in the county in which the
petitioner resides in order to enforce the civil penalty provided
in this paragraph.
(c) The commission's deliberations of a case at the conclusion
of the Preliminary Review Phase shall be conducted in executive
session. All case related materials and proceedings shall be open
to the public after the commission makes a finding of cause,
dismisses a complaint or rescinds a motion. Prior to the end of
the Preliminary Review Phase, the executive director of the
commission shall prepare a statement of the facts determined
during the phase, including appropriate legal citations and
relevant authorities. Before presentation to the commission, the
executive director's statement shall be reviewed by legal counsel
to the commission.
(d) The time limit imposed in this subsection and the
commission's inquiry are suspended if:
(A) There is a pending criminal investigation that relates to
the issues arising out of the underlying facts or conduct at
issue in the matter before the commission unless the parties
stipulate otherwise; or
(B) A court has enjoined the commission from continuing its
inquiry.
(7)(a) The period of time from the finding of cause to the
beginning of any contested case proceedings shall be termed the
Investigatory Phase and shall not exceed 120 days unless a delay
is stipulated to by both the public official and the Oregon
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Government Standards and Practices Commission with the commission
reserving a portion of the delay period to complete its actions.
(b) The time limit imposed in this subsection and the
commission's investigation are suspended if:
(A) There is a pending criminal investigation that relates to
the issues arising out of the underlying facts or conduct at
issue in the matter before the commission unless the parties
stipulate otherwise; or
(B) A court has enjoined the commission from continuing its
investigation.
(c) At the end of the Investigatory Phase, the commission shall
take action by order, which action may include:
(A) Dismissal, with or without comment;
(B) Continuation of the investigation to determine further
facts, but no more than one continuation, not to exceed 30 days'
duration, shall be taken;
(C) Moving to a contested case proceeding;
(D) Seeking a negotiated settlement; or
(E) Taking other appropriate action if justified by the
findings.
(8) If, at the end of the Investigatory Phase, the commission
takes action by order to move to a contested case proceeding, a
public official may notify the commission that the official
elects to have the commission file a lawsuit against the official
in the Marion County Circuit Court in lieu of the contested case
proceeding. The public official shall notify the commission of
the election in writing no later than 21 days after receiving
notification of the commission's action by order to move to the
contested case proceeding. The commission shall file suit within
30 days after receiving notice that the public official has
elected the lawsuit procedure.
(9) The commission shall not inquire into or investigate any
complaint or act at its own instigation on alleged conduct that
occurred more than four years before the complaint is filed or
action is undertaken.
(10) Nothing in this section is intended to prevent the
commission and the public official or other person alleged to
have violated this chapter from stipulating to a finding of fact
concerning the violation and consenting to an appropriate
penalty. The commission shall enter an order accordingly.
(11) As used in this section:
(a) 'Cause' means that there is a substantial, objective basis
for believing that an offense or violation may have been
committed and the person who is the subject of an inquiry may
have committed the offense or violation.
(b) 'Pending' means that a prosecuting attorney is either
actively investigating the factual basis of the alleged criminal
conduct, is preparing to seek or is seeking an accusatory
instrument, has obtained an accusatory instrument and is
proceeding to trial or is in trial or in the process of
negotiating a plea.
SECTION 31. ORS 274.755, as amended by section 58, chapter 849,
Oregon Laws 1999, and section 84, chapter 104, Oregon Laws 2001,
is amended to read:
274.755. (1) Before granting any easement under ORS 274.705 to
274.860, and before offering lands for leasing under ORS 274.705
to 274.860, or whenever any person files a written application
with the Division of State Lands requesting that an easement be
granted for such lands or that such lands be offered for leasing
under ORS 274.705 to 274.860, accompanying the same with the
Enrolled House Bill 2526 (HB 2526-B) Page 27
required fee, the division shall hold a public hearing as
provided in this section.
(2) Before granting an easement or inviting bids on any lands
subject to ORS 274.705 to 274.860, the division shall cause
written notice describing the area under consideration and other
pertinent information to be transmitted to:
(a) State Geologist;
(b) Director of Transportation;
(c) Director of the Department of Environmental Quality;
(d) State Fish and Wildlife Director;
(e) The applicant, if any, requesting the lease;
(f) Prospective applicants or bidders, by publication thereof
in two or more publications of general circulation in the oil and
gas industry; and
(g) The public, by publication thereof once each week for not
less than four weeks in a newspaper of general circulation
throughout the State of Oregon, and in addition in a newspaper of
general circulation in the county in which the lands lie or the
county or counties contiguous to the area under consideration for
bidding.
(3) The notice shall set forth the place of hearing and shall
set its time at not earlier than the 20th day after date of the
last newspaper publication.
(4) { - The division may appoint one of its officers or
employees or, by mutual agreement with another state agency,
board or commission, one of the agency, board or commission
employees to conduct hearings authorized under this section. - }
{ + Notwithstanding section 9, chapter 849, Oregon Laws 1999,
hearings under this section may be conducted by an administrative
law judge assigned from the Office of Administrative Hearings
established under section 3, chapter 849, Oregon Laws 1999, or
may be conducted by a hearing officer designated by the State
Land Board. + } An officer or employee of each interested state
agency, board or commission named in subsection (2) of this
section may question any witnesses appearing in the hearing, and
any interested person may offer evidence and otherwise be heard.
SECTION 32. ORS 279.045, as amended by section 61, chapter 849,
Oregon Laws 1999, and section 88, chapter 104, Oregon Laws 2001,
is amended to read:
279.045. (1) The procedure for appeal from a disqualification
or denial, revocation or revision of a prequalification by a
public contracting agency shall be in accordance with this
section and is not subject to ORS 183.310 to 183.550 except where
specifically provided by this section.
(2) Promptly upon receipt of notice of appeal from a public
contracting agency as provided for by ORS 279.043, the Director
of the Oregon Department of Administrative Services or the local
contract review board shall notify the person appealing and the
public contracting agency of the time and place of the hearing.
The director or board shall conduct the hearing and decide the
appeal within 30 days after receiving the notification from the
public contracting agency. The director or board shall set forth
in writing the reasons for the decision.
(3) In the hearing the director or board shall consider de novo
the notice of disqualification or denial, revocation or revision
of a prequalification, the reasons listed in ORS 279.037 (2) on
which the public contracting agency based the disqualification or
the standards of responsibility listed in ORS 279.029 (6)(a)(B)
on which the public contracting agency based the denial,
revocation or revision of the prequalification and any evidence
Enrolled House Bill 2526 (HB 2526-B) Page 28
provided by the parties. In all other respects, hearings before
the director shall be conducted in the same manner as a contested
case under ORS 183.415 (3) to (6) and (9), 183.425, 183.440,
183.450 and 183.452. { - Hearings before a board shall be
conducted under rules of procedure adopted by the board. - }
(4) The director may allocate the director's cost for the
hearing between the person appealing and the public contracting
agency whose disqualification or prequalification decision is
being appealed. The allocation shall be based upon facts found by
the director and stated in the final order which, in the
director's opinion, warrant such allocation of the costs. If the
final order does not allocate the director's costs for the
hearing, such costs shall be paid as follows:
(a) If the decision to disqualify or deny, revoke or revise a
prequalification of a person as a bidder is upheld, the
director's costs shall be paid by the person appealing the
disqualification or prequalification decision.
(b) If the decision to disqualify or deny, revoke or revise a
prequalification of a person as a bidder is reversed by the
director, the director's costs shall be paid by the public
contracting agency whose disqualification or prequalification
decision is the subject of the appeal.
(5) The decision of the director or board may be reviewed only
upon a petition, filed within 15 days after the date of the
decision, in the circuit court of the county in which the
director or board has its principal office. The circuit court
shall reverse or modify the decision only if it finds:
(a) The decision was procured by corruption, fraud or undue
means.
(b) There was evident partiality or corruption on the part of
the director or board or any of its members.
(c) There was an evident material miscalculation of figures or
an evident material mistake in the description of any person,
thing or property referred to in the decision.
(6) The procedure provided in this section is the exclusive
means of judicial review of the decision of the director or
board. The judicial review provisions of ORS 183.480 and writs
of review and mandamus as provided in ORS chapter 34, and other
legal, declaratory and injunctive remedies are not available.
(7) The circuit court may, in its discretion, stay the letting
of the contract which is the subject of the petition in the same
manner as a suit in equity. In the event the court determines
that there has been an improper disqualification or denial,
revocation or revision of a prequalification and the contract has
been let, the court may proceed to take evidence to determine the
damages, if any, suffered by the petitioner and award such
damages as the court may find as a judgment against the director
or board. The court may award costs and attorney fees to the
prevailing party.
SECTION 33. ORS 342.177, as amended by section 70, chapter 849,
Oregon Laws 1999, is amended to read:
342.177. (1) Hearings under ORS 342.176 shall be conducted by
{ - the Teacher Standards and Practices Commission, by three
members of the commission designated by the commission or by a
hearing officer designated by the commission - } { + an
administrative law judge assigned from the Office of
Administrative Hearings established under section 3, chapter 849,
Oregon Laws 1999 + }. The hearing shall be private unless the
person against whom the charge is made requests a public hearing.
Students attending school in the district which employs the
Enrolled House Bill 2526 (HB 2526-B) Page 29
person shall not be permitted to attend any hearing except as
witnesses duly subpoenaed to testify with respect to the charges
made. The person against whom the charge is made shall have the
right to be represented by counsel and to present evidence and
argument. The evidence must be confined to the charges.
(2) The { + Teacher Standards and Practices + } Commission or
the person charged may have subpoenas issued to compel attendance
at the hearing. The person charged may have subpoenas issued by
an attorney of record subscribed by the signature of the attorney
or by the executive director. Witnesses appearing pursuant to
subpoena, other than the parties or officers or employees of the
commission, shall receive fees and mileage as prescribed by law
for witnesses in ORS 44.415 (2). The commission or the person
charged shall have the right to compel the attendance and
obedience of witnesses in the same manner as provided under ORS
183.440 (2).
(3) The commission shall render its decision at its next
regular meeting following the hearing. If the decision of the
commission is that the charge described in ORS 342.175 (1) has
been proven, the commission may take any or all of the following
disciplinary action against the person charged:
(a) Issue a public reprimand.
(b) Place the person on probation for a period not to exceed
four years and subject to such conditions as the commission
considers necessary.
(c) Suspend the license of the teacher or administrator for a
period not to exceed one year.
(d) Revoke the license of the teacher or administrator.
(e) Revoke the privilege to apply for a license.
(4) If the decision of the commission is that the charge is not
proven, the commission shall order the charges dismissed.
(5) The commission shall notify in writing the person charged,
the school district by which the person is employed and the
Superintendent of Public Instruction of the decision.
SECTION 34. ORS 416.427, as amended by section 79, chapter 849,
Oregon Laws 1999, is amended to read:
416.427. (1) When a party requests a hearing pursuant to ORS
416.415, 416.425 (1) or 416.429, the contested case provisions of
ORS 183.310 to 183.550 apply except when the issue of paternity
is to be resolved pursuant to ORS 416.430.
(2) Except as provided in ORS 416.430, hearings shall be
conducted by { - a qualified hearing officer appointed by the
Employment Department - } { + an administrative law judge
assigned from the Office of Administrative Hearings established
under section 3, chapter 849, Oregon Laws 1999 + }.
(3) The { - hearing officer - } { + administrative law
judge + } has the power to issue subpoenas for witnesses
necessary to develop a full record. The attorney of record for
the office { + of the Division of Child Support or the office of
the district attorney + } may issue subpoenas. Witnesses
appearing pursuant to subpoena, other than parties or officers or
employees of the administrator, shall receive fees and mileage as
prescribed by law for witnesses in ORS 44.415 (2). Obedience to
the subpoena may be compelled in the same manner as set out in
ORS 183.440 (2).
(4) Upon issuance of an order, action by the administrator to
enforce and collect upon the order, including arrearages, may be
taken. Such action shall not be stayed or partially stayed
pending appeal or by any court unless there is substantial
Enrolled House Bill 2526 (HB 2526-B) Page 30
evidence showing that the obligor would be irreparably harmed and
that the obligee would not be irreparably harmed.
(5) An order issued by the { - hearing officer - } { +
administrative law judge + } or the administrator is final. The
order shall be in full force and effect while any appeal is
pending unless the order is stayed by a court. No stay shall be
granted unless there is substantial evidence showing the obligor
would be irreparably harmed and that the obligee would not be
irreparably harmed.
(6) Appeal of the order of the { - hearing officer - }
{ + administrative law judge + } or any default or consent order
entered by the administrator pursuant to ORS 416.400 to 416.470
may be taken to the circuit court of the county in which the
order has been docketed pursuant to ORS 416.440 for a hearing de
novo. The appeal shall be by petition for review filed within 60
days after the order has been docketed pursuant to ORS 416.440.
Unless otherwise specifically provided by law, the appeal shall
be conducted pursuant to the Oregon Rules of Civil Procedure.
(7) The obligor, the obligee and the state are parties to any
proceedings, including appeals, under this section.
SECTION 35. ORS 431.730, as amended by section 82, chapter 849,
Oregon Laws 1999, is amended to read:
431.730. (1) At the hearing on the resolution, any interested
person shall be given a reasonable opportunity to be heard or to
present written statements. The hearing shall be for the sole
purpose of determining whether a danger to public health exists
due to conditions in the affected territory and whether such
conditions could be removed or alleviated by the provision of
service facilities. Hearings under this section shall be
conducted by { - the Director of Human Services or by a hearing
officer designated by the director - } { + an administrative
law judge assigned from the Office of Administrative Hearings
established under section 3, chapter 849, Oregon Laws 1999 + }.
It shall be conducted in accordance with the provisions of ORS
183.310 to 183.550. The Department of Human Services shall
publish a notice of the issuance of said findings and
recommendations in the newspaper utilized for the notice of
hearing under ORS 431.725 (2) advising of the opportunity for
presentation of a petition under subsection (2) of this section.
(2) Within 15 days after the publication of notice of issuance
of findings in accordance with subsection (1) of this section,
any person who may be affected by the findings, or the affected
district, may petition the director according to rules of the
department to present written or oral arguments relative to the
proposal. If a petition is received, the director may set a time
and place for receipt of argument.
SECTION 36. ORS 448.255, as amended by section 85, chapter 849,
Oregon Laws 1999, is amended to read:
448.255. (1) Whenever the Director of Human Services has
reasonable grounds to believe that a water system or part thereof
is being operated or maintained in violation of any rule adopted
pursuant to ORS 448.115 to 448.285, 454.235 and 454.255, the
director shall give written notice to the water supplier
responsible for the system.
(2) The notice required under subsection (1) of this section
shall include the following:
(a) Citation of the rule allegedly violated;
(b) The manner and extent of the alleged violation; and
(c) A statement of the party's right to request a hearing.
Enrolled House Bill 2526 (HB 2526-B) Page 31
(3) The notice shall be served personally or by registered or
certified mail and shall be accompanied by an order of the
director requiring remedial action which, if taken within the
time specified in the order, will effect compliance with the rule
allegedly violated. The order shall become final unless request
for hearing is made by the party receiving the notice within 10
days from the date of personal service or the date of mailing of
the notice.
(4) The form of petition for hearing and the procedures
employed in the hearing shall be consistent with the requirements
of ORS 183.310 to 183.550 and shall be in accordance with rules
adopted by the Department of Human Services.
{ - (5) The director may designate a hearing officer to act
on behalf of the director in holding and conducting hearings. - }
{ + (5) Hearings under this section shall be conducted by an
administrative law judge assigned from the Office of
Administrative Hearings established under section 3, chapter 849,
Oregon Laws 1999. + }
(6) The order shall be affirmed or reversed by the director
after hearing. A copy of the director's decision setting forth
findings of fact and conclusions shall be sent by registered or
certified mail to the petitioner or served personally upon the
petitioner. An appeal from such decision may be made as provided
in ORS 183.480 relating to a contested case.
SECTION 37. ORS 462.405, as amended by section 88, chapter 849,
Oregon Laws 1999, is amended to read:
462.405. (1) The board of stewards appointed by the Oregon
Racing Commission for a race meet may, after an inquiry and
hearing, impose appropriate sanctions for failure to comply with
the laws and rules of racing and with the authorized commission
or board directives applicable to said race meet, subject to the
following limitations:
(a) No fine shall exceed $500 per offense.
(b) No license suspension shall be for a period longer than 365
calendar days from the date of issuance of the order of the board
of stewards.
(2) Any sanction imposed by the board of stewards shall take
effect on the date so indicated in the board's ruling unless the
effective date is stayed for good cause shown by specific order
of the executive director of the commission, or a member of the
commission, pending commission review.
(3) In lieu of the board of stewards conducting any inquiry and
hearing provided for by subsection (1) of this section, the board
of stewards may request the commission to appoint and designate a
person to conduct such inquiry and hearing who shall be known as
a hearings master. The hearings master shall have the same
authority and power as the board of stewards in conducting the
inquiry and hearing. Any person adversely affected by any
hearings master ruling has the right to appeal to the commission
as provided for in subsection (4) of this section. { + The
hearings master need not be an administrative law judge assigned
from the Office of Administrative Hearings established under
section 3, chapter 849, Oregon Laws 1999. + }
(4) The board of stewards may refer any matter before it to the
commission for appropriate review or action either before or
after a board hearing or ruling. A person adversely affected by
any board ruling has the right to appeal to the commission for a
review and hearing as provided in ORS 183.310 to 183.550. Such
review shall be perfected by filing a written notice of appeal
Enrolled House Bill 2526 (HB 2526-B) Page 32
with the executive director within 10 days after the board ruling
is issued. { + Hearings conducted by the commission under this
subsection shall be heard by an administrative law judge assigned
from the Office of Administrative Hearings established under
section 3, chapter 849, Oregon Laws 1999. + } The commission is
not limited in its actions or in the sanctions it may impose by
any ruling of the board or by any limitation imposed upon the
board by commission rule or regulation or by subsection (2) of
this section.
SECTION 38. ORS 464.500, as amended by section 91, chapter 849,
Oregon Laws 1999, is amended to read:
464.500. (1) In order to determine compliance with state law
and rules of the department relating to the operation of bingo,
lotto, raffles or Monte Carlo events, the Department of Justice
or its designee may:
(a) Investigate whether a person has violated state law or
rules of the department relating to the operation of bingo, lotto
or raffle games or Monte Carlo events.
(b) Inspect the records of any person who lends money to, or in
any other manner finances, any licensee or applicant for any
license or who receives any income or profits from the use of the
license.
(2) The department or its designee may conduct investigations
into the operation of any bingo, lotto or raffle game or Monte
Carlo event in this state. For that purpose, the department or
its designee may subpoena witnesses, compel attendance, take
depositions and testimony and require the production of material
relevant to the investigation.
(3) The department or its designee may hold contested case
hearings which shall be subject to ORS 183.413 to 183.470,
subject to review as provided under ORS 183.480 to 183.490.
(4) Upon failure to obey a subpoena or to answer questions
asked by the department's designee and upon reasonable notice to
all persons affected, the department may apply to the circuit
court for an order compelling compliance.
(5) { - The department may appoint a hearing officer to
conduct - } Hearings regarding suspension, revocation or denial
of bingo, lotto, raffle or Monte Carlo event licenses or
permits { + shall be conducted by an administrative law judge
assigned from the Office of Administrative Hearings established
under section 3, chapter 849, Oregon Laws 1999 + }. The
{ - hearing officer - } { + administrative law judge + } may
administer oaths and conduct the hearings as provided in ORS
183.413 to 183.470. { - Salaries and expenses of the hearing
officer shall be as the department shall determine and shall be
paid by the department. - }
SECTION 39. ORS 466.185, as amended by section 94, chapter 849,
Oregon Laws 1999, is amended to read:
466.185. (1) The Department of Environmental Quality shall
investigate any complaint made to it by any person that the
operation of any generator, air or water transporter or hazardous
waste disposal, storage or treatment site is unsafe or that the
operation is in violation of the provisions of ORS 466.005 to
466.385 and 466.992 or the rules adopted under ORS 466.005 to
466.385 and 466.992.
(2) If, after making an investigation under subsection (1) of
this section, the department is satisfied that sufficient grounds
exist to justify a hearing upon the complaint, it shall give 10
days' written notice of the time and place of the hearing and the
matters to be considered at the hearing. A copy of the complaint
Enrolled House Bill 2526 (HB 2526-B) Page 33
shall be furnished by the department to the respondent. Both the
complainant and the respondent are entitled to be heard, produce
evidence and offer exhibits and to require the attendance of
witnesses at the hearing.
(3) { - The Environmental Quality Commission or a hearing
officer appointed by the commission - } { + An administrative
law judge assigned from the Office of Administrative Hearings
established under section 3, chapter 849, Oregon Laws 1999, + }
shall hear the matter. Within 30 days after the date of the
hearing and after considering all evidence and testimony
submitted, the { + Environmental Quality + } Commission shall
make a specific order as it considers necessary. Any order issued
by the commission under this subsection shall be subject to
judicial review in the manner provided by ORS 183.480 for
judicial review of orders in contested cases. The costs of
reporting and of transcribing the hearing for the purpose of
judicial review shall be paid by the party seeking judicial
review.
SECTION 40. ORS 466.305, as amended by section 97, chapter 849,
Oregon Laws 1999, is amended to read:
466.305. (1) The Department of Environmental Quality shall
investigate any complaint made to it by any person that the
operation of any PCB disposal facility is unsafe or that the
operation is in violation of a condition of the operator's permit
or any provisions of ORS 466.025 to 466.065, 466.250, 466.255 (2)
and (3) and 466.260 to 466.340 or the rules adopted under ORS
466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to
466.350. Upon receiving a complaint, the department shall furnish
a copy of the complaint to the person holding the permit to
operate the PCB disposal facility.
(2) If, after making an investigation under subsection (1) of
this section, the department is satisfied that sufficient grounds
exist to justify a hearing upon the complaint, it shall give 10
days' written notice of the time and place of the hearing and the
matters to be considered at the hearing. Both the complainant and
the respondent are entitled to be heard, produce evidence and
offer exhibits and to require the attendance of witnesses at the
hearing.
(3) { - The Environmental Quality Commission or a hearing
officer appointed by the commission - } { + An administrative
law judge assigned from the Office of Administrative Hearings
established under section 3, chapter 849, Oregon Laws 1999, + }
shall hear the matter. Within 30 days after the date of the
hearing and after considering all evidence and testimony
submitted, the { + Environmental Quality + } Commission shall
make a specific order as it considers necessary. Any order issued
by the commission under this subsection shall be subject to
judicial review in the manner provided by ORS 183.480 for
judicial review of orders in contested cases. The costs of
reporting and of transcribing the hearing for the purpose of
judicial review shall be paid by the party seeking judicial
review.
SECTION 41. ORS 466.610, as amended by section 100, chapter
849, Oregon Laws 1999, is amended to read:
466.610. Subject to policy direction by the Environmental
Quality Commission, the Department of Environmental Quality may:
(1) Conduct and prepare independently or in cooperation with
others, studies, investigations, research and programs pertaining
to the containment, collection, removal or cleanup of oil and
hazardous material.
Enrolled House Bill 2526 (HB 2526-B) Page 34
(2) Advise, consult, participate and cooperate with other
agencies of the state, political subdivisions, other states or
the federal government, in respect to any proceedings and all
matters pertaining to responses, remedial actions or cleanup of
oil and hazardous material and financing of cleanup costs,
including radioactive waste, materials and substances otherwise
subject to ORS chapters 453 and 469.
(3) Employ personnel, including specialists { - , - }
{ + and + } consultants { - and hearing officers - } ,
purchase materials and supplies and enter into contracts with
public and private parties necessary to carry out the provisions
of ORS 466.605 to 466.680, 466.990 (3) and (4) and 466.995 (2).
(4) Conduct and supervise educational programs about oil and
hazardous material, including the preparation and distribution of
information regarding the containment, collection, removal or
cleanup of oil and hazardous material.
(5) Provide advisory technical consultation and services to
units of local government and to state agencies.
(6) Develop and conduct demonstration programs in cooperation
with units of local government.
(7) Perform all other acts necessary to carry out the duties,
powers and responsibilities of the department under ORS 466.605
to 466.680, 466.990 (3) and (4) and 466.995 (2).
SECTION 42. ORS 468.035, as amended by section 103, chapter
849, Oregon Laws 1999, is amended to read:
468.035. (1) Subject to policy direction by the Environmental
Quality Commission, the Department of Environmental Quality:
(a) Shall encourage voluntary cooperation by the people,
municipalities, counties, industries, agriculture, and other
pursuits, in restoring and preserving the quality and purity of
the air and the waters of the state in accordance with rules and
standards established by the commission.
(b) May conduct and prepare, independently or in cooperation
with others, studies, investigations, research and programs
pertaining to the quality and purity of the air or the waters of
the state and to the treatment and disposal of wastes.
(c) Shall advise, consult, and cooperate with other agencies of
the state, political subdivisions, other states or the federal
government, in respect to any proceedings and all matters
pertaining to control of air or water pollution or for the
formation and submission to the legislature of interstate
pollution control compacts or agreements.
(d) May employ personnel, including specialists { - , - }
{ + and + } consultants { - and hearing officers - } ,
purchase materials and supplies, and enter into contracts
necessary to carry out the purposes set forth in ORS 448.305,
454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535,
454.605 to 454.755 and ORS chapters 468, 468A and 468B.
(e) Shall conduct and supervise programs of air and water
pollution control education, including the preparation and
distribution of information regarding air and water pollution
sources and control.
(f) Shall provide advisory technical consultation and services
to units of local government and to state agencies.
(g) Shall develop and conduct demonstration programs in
cooperation with units of local government.
(h) Shall serve as the agency of the state for receipt of
moneys from the federal government or other public or private
agencies for the purposes of air and water pollution control,
Enrolled House Bill 2526 (HB 2526-B) Page 35
studies or research and to expend moneys after appropriation
thereof for the purposes given.
(i) Shall make such determination of priority of air or water
pollution control projects as may be necessary under terms of
statutes enacted by the Congress of the United States.
(j) Shall seek enforcement of the air and water pollution laws
of the state.
(k) Shall institute or cause to be instituted in a court of
competent jurisdiction, proceedings to compel compliance with any
rule or standard adopted or any order or permit, or condition
thereof, issued pursuant to ORS 448.305, 454.010 to 454.040,
454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and
ORS chapters 468, 468A and 468B.
(L) Shall encourage the formulation and execution of plans in
conjunction with air and water pollution control agencies or with
associations of counties, cities, industries and other persons
who severally or jointly are or may be the source of air or water
pollution, for the prevention and abatement of pollution.
(m) May determine, by means of field studies and sampling, the
degree of air or water pollution in various regions of the state.
(n) May perform such other and further acts as may be
necessary, proper or desirable to carry out effectively the
duties, powers and responsibilities of the department as set
forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255,
454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A
and 468B.
(o) Shall coordinate any activities of the department related
to a watershed enhancement project approved by the Oregon
Watershed Enhancement Board under ORS 541.375 with activities of
other cooperating state and federal agencies participating in the
project.
(2) Nothing in this section shall affect the authority of the
Department of Human Services to make and enforce rules:
(a) Regarding the quality of water for human or animal
consumption pursuant to ORS 448.115 to 448.325, 624.010 to
624.120 and 624.310 to 624.430; and
(b) Regarding the quality of water for public swimming places
pursuant to ORS 431.110.
(3) Nothing in this section shall prevent the State Department
of Agriculture or the State Forestry Department from
independently receiving moneys from a public or private agency
for the purposes of preventing or controlling air or water
pollution resulting from agricultural or silvicultural activities
or soil erosion, or for research related to such purposes.
(4)(a) In awarding a public contract under ORS chapter 279 for
a removal or remedial action pursuant to ORS 465.200 to 465.510,
465.517 to 465.548 and 465.992, a corrective action or cleanup
action pursuant to ORS 466.005 to 466.385, 466.605 to 466.680 or
466.706 to 466.882 or a removal pursuant to ORS 468B.005 to
468B.030, 468B.035, 468B.048 to 468B.085, 468B.090, 468B.093,
468B.095 and 468B.300 to 468B.500, the department, and the Oregon
Department of Administrative Services, when administering the
establishment of such a contract on behalf of the Department of
Environmental Quality under ORS 279.712, shall subtract from the
amount of any bid or proposal the hazardous waste management fees
and solid waste fees that would be required by law to be paid to
the department for waste that would be disposed of at a solid
waste disposal site or a hazardous waste or PCB disposal
facility, based on the bid or proposal. The amount to be
subtracted shall be established on the basis of reasonable
Enrolled House Bill 2526 (HB 2526-B) Page 36
preprocurement estimates of the amount of waste that would be
disposed of under the contract and that would be subject to those
fees.
(b) The subtraction for fees under paragraph (a) of this
subsection shall apply only to a contract reasonably anticipated
to involve the disposal of no less than 50 tons of hazardous
waste or no less than 500 tons of solid waste. The Legislative
Assembly finds that making accurate advance estimates of amounts
of waste that would be disposed of in projects of this character
is technically challenging and requires the application of
professional discretion. Therefore, no award of a contract under
this subsection shall be subject to challenge, under ORS 279.067
or otherwise, on the ground of the inaccuracy or claimed
inaccuracy of any such estimate.
(c) The subtraction for fees under paragraph (a) of this
subsection shall not apply to the establishment, by or on behalf
of the department, of master contracts by which the department
engages the services of a contractor over a period of time for
the purpose of issuing work orders for the performance of
environmental activities on a project or projects for which the
amounts of waste to be disposed of were not reasonably identified
at the inception of the master contracts. However, the department
shall require any contractor under a master contract to apply the
subtraction for fees under paragraph (a) of this subsection in
the selection of any subcontractor to perform the removal of
waste in amounts equaling or exceeding the amounts set forth in
paragraph (b) of this subsection. Nothing in this subsection
shall be construed to prohibit the department or the Oregon
Department of Administrative Services from establishing contracts
pursuant to this section through contracting procedures
authorized by ORS chapter 279 that do not require the
solicitation of bids or proposals.
SECTION 43. ORS 468.035, as amended by section 103, chapter
849, Oregon Laws 1999, and section 18, chapter 495, Oregon Laws
2001, is amended to read:
468.035. (1) Subject to policy direction by the Environmental
Quality Commission, the Department of Environmental Quality:
(a) Shall encourage voluntary cooperation by the people,
municipalities, counties, industries, agriculture, and other
pursuits, in restoring and preserving the quality and purity of
the air and the waters of the state in accordance with rules and
standards established by the commission.
(b) May conduct and prepare, independently or in cooperation
with others, studies, investigations, research and programs
pertaining to the quality and purity of the air or the waters of
the state and to the treatment and disposal of wastes.
(c) Shall advise, consult, and cooperate with other agencies of
the state, political subdivisions, other states or the federal
government, in respect to any proceedings and all matters
pertaining to control of air or water pollution or for the
formation and submission to the legislature of interstate
pollution control compacts or agreements.
(d) May employ personnel, including specialists { - , - }
{ + and + } consultants { - and hearing officers - } ,
purchase materials and supplies, and enter into contracts
necessary to carry out the purposes set forth in ORS 448.305,
454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535,
454.605 to 454.755 and ORS chapters 468, 468A and 468B.
(e) Shall conduct and supervise programs of air and water
pollution control education, including the preparation and
Enrolled House Bill 2526 (HB 2526-B) Page 37
distribution of information regarding air and water pollution
sources and control.
(f) Shall provide advisory technical consultation and services
to units of local government and to state agencies.
(g) Shall develop and conduct demonstration programs in
cooperation with units of local government.
(h) Shall serve as the agency of the state for receipt of
moneys from the federal government or other public or private
agencies for the purposes of air and water pollution control,
studies or research and to expend moneys after appropriation
thereof for the purposes given.
(i) Shall make such determination of priority of air or water
pollution control projects as may be necessary under terms of
statutes enacted by the Congress of the United States.
(j) Shall seek enforcement of the air and water pollution laws
of the state.
(k) Shall institute or cause to be instituted in a court of
competent jurisdiction, proceedings to compel compliance with any
rule or standard adopted or any order or permit, or condition
thereof, issued pursuant to ORS 448.305, 454.010 to 454.040,
454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and
ORS chapters 468, 468A and 468B.
(L) Shall encourage the formulation and execution of plans in
conjunction with air and water pollution control agencies or with
associations of counties, cities, industries and other persons
who severally or jointly are or may be the source of air or water
pollution, for the prevention and abatement of pollution.
(m) May determine, by means of field studies and sampling, the
degree of air or water pollution in various regions of the state.
(n) May perform such other and further acts as may be
necessary, proper or desirable to carry out effectively the
duties, powers and responsibilities of the department as set
forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255,
454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A
and 468B.
(o) Shall coordinate any activities of the department related
to a watershed enhancement project approved by the Oregon
Watershed Enhancement Board under ORS 541.375 with activities of
other cooperating state and federal agencies participating in the
project.
(2) Nothing in this section shall affect the authority of the
Department of Human Services to make and enforce rules:
(a) Regarding the quality of water for human or animal
consumption pursuant to ORS 448.115 to 448.325, 624.010 to
624.120 and 624.310 to 624.430; and
(b) Regarding the quality of water for public swimming places
pursuant to ORS 431.110.
(3) Nothing in this section shall prevent the State Department
of Agriculture or the State Forestry Department from
independently receiving moneys from a public or private agency
for the purposes of preventing or controlling air or water
pollution resulting from agricultural or silvicultural activities
or soil erosion, or for research related to such purposes.
(4)(a) In awarding a public contract under ORS chapter 279 for
a removal or remedial action pursuant to ORS 465.200 to 465.510,
a corrective action or cleanup action pursuant to ORS 466.005 to
466.385, 466.605 to 466.680 or 466.706 to 466.882 or a removal
pursuant to ORS 468B.005 to 468B.030, 468B.035, 468B.048 to
468B.085, 468B.090, 468B.093, 468B.095 and 468B.300 to 468B.500,
the department, and the Oregon Department of Administrative
Enrolled House Bill 2526 (HB 2526-B) Page 38
Services, when administering the establishment of such a contract
on behalf of the Department of Environmental Quality under ORS
279.712, shall subtract from the amount of any bid or proposal
the hazardous waste management fees and solid waste fees that
would be required by law to be paid to the department for waste
that would be disposed of at a solid waste disposal site or a
hazardous waste or PCB disposal facility, based on the bid or
proposal. The amount to be subtracted shall be established on the
basis of reasonable preprocurement estimates of the amount of
waste that would be disposed of under the contract and that would
be subject to those fees.
(b) The subtraction for fees under paragraph (a) of this
subsection shall apply only to a contract reasonably anticipated
to involve the disposal of no less than 50 tons of hazardous
waste or no less than 500 tons of solid waste. The Legislative
Assembly finds that making accurate advance estimates of amounts
of waste that would be disposed of in projects of this character
is technically challenging and requires the application of
professional discretion. Therefore, no award of a contract under
this subsection shall be subject to challenge, under ORS 279.067
or otherwise, on the ground of the inaccuracy or claimed
inaccuracy of any such estimate.
(c) The subtraction for fees under paragraph (a) of this
subsection shall not apply to the establishment, by or on behalf
of the department, of master contracts by which the department
engages the services of a contractor over a period of time for
the purpose of issuing work orders for the performance of
environmental activities on a project or projects for which the
amounts of waste to be disposed of were not reasonably identified
at the inception of the master contracts. However, the department
shall require any contractor under a master contract to apply the
subtraction for fees under paragraph (a) of this subsection in
the selection of any subcontractor to perform the removal of
waste in amounts equaling or exceeding the amounts set forth in
paragraph (b) of this subsection. Nothing in this subsection
shall be construed to prohibit the department or the Oregon
Department of Administrative Services from establishing contracts
pursuant to this section through contracting procedures
authorized by ORS chapter 279 that do not require the
solicitation of bids or proposals.
SECTION 44. ORS 517.983, as amended by section 104c, chapter
849, Oregon Laws 1999, is amended to read:
517.983. (1) The applicant or any person who appeared before a
permitting agency at the consolidated public hearing under ORS
517.981, either orally or in writing, regarding a permit granted
or denied by the permitting agency may file with the State
Geologist a written request for a consolidated contested case
hearing. The request shall be filed within 30 days after the date
the permit was granted or denied.
(2) Upon receipt of a request under subsection (1) of this
section, the State Department of Geology and Mineral Industries
shall schedule a consolidated contested case hearing which shall
be held not less than 60 days or more than 75 days after the
notice of permit issuance under ORS 517.982. The hearing shall be
conducted in accordance with the provisions applicable to
contested case proceedings under ORS 183.310 to 183.550. Any
permit granted by a permitting agency shall be suspended until
completion of the administrative hearings process.
{ - (3) Each permitting agency for which a permit decision is
appealed may appoint a hearing officer to participate in the
Enrolled House Bill 2526 (HB 2526-B) Page 39
formal hearing or, with the consent of all other permitting
agencies, the State Department of Geology and Mineral Industries
may appoint a single hearing officer. - }
{ + (3) Hearings under this section shall be conducted by an
administrative law judge assigned from the Office of
Administrative Hearings established under section 3, chapter 849,
Oregon Laws 1999. + }
(4) The { - hearing officer - } { + administrative law
judge + } shall prepare a proposed order for each contested
permit. A party may file written exceptions to the proposed order
with the permitting agency. If the permitting agency determines
that additional information may be included in the record, the
agency shall remand the order to the appropriate { - hearing
officer - } { + administrative law judge + } for further
consideration. After receiving exceptions and hearing argument on
the exceptions, the governing body or person within the
permitting agency responsible for making a final decision on a
permit may adopt the proposed order or issue a new order.
(5) Jurisdiction for judicial review of a permitting agency's
issuance or denial of a permit is conferred upon the Supreme
Court. Proceedings for review shall be instituted by filing a
petition in the Supreme Court. The petition shall be filed within
60 days following the date the permit is issued or denied. If the
permit with prescribed conditions is approved, the filing of the
petition for review shall stay the permit during the pendency of
judicial review for a period of up to six months from the date
the petition for review is filed. The Supreme Court may extend
the stay beyond the six-month period upon written request and a
showing by the petitioner that the activities under the permit
could result in irreparable harm to the site. Except as otherwise
provided in this subsection, the review by the Supreme Court
shall be as provided in ORS 183.482. The Supreme Court shall give
priority on its docket to such a petition for review.
(6) When only the applicant files a petition for judicial
review, the six-month stay imposed under subsection (5) of this
section may be removed by the permitting agency upon written
request within 60 days after the filing of the petition and a
showing by the applicant to support a finding by the permitting
agency that proceeding with any or all activities under the
permit will not result in irreparable harm to the site. In making
such findings the permitting agency may require an additional
bond or alternative security to be filed with the State
Department of Geology and Mineral Industries as provided in ORS
517.987. The bond shall be in an amount the permitting agency
determines necessary to assure complete restoration of the site
if the petitioner elects not to complete the project following
judicial review. Agency denial of the request to remove the stay
is subject to review by the Supreme Court under such rules as the
Supreme Court may establish.
SECTION 45. ORS 527.687, as amended by section 108, chapter
849, Oregon Laws 1999, is amended to read:
527.687. (1) Subject to the notice provisions of ORS 527.683,
any civil penalty under ORS 527.992 shall be imposed in the
manner provided in ORS 183.090.
(2) In no case shall a hearing requested under ORS 183.090 be
held less than 45 days from the date of service of the notice of
penalty to allow the party to prepare testimony. The hearing
shall be held not more than 180 days following issuance of the
notice unless all parties agree on an extension.
Enrolled House Bill 2526 (HB 2526-B) Page 40
{ - (3) Hearings under this section may be conducted by a
hearing officer designated by the State Forester. - }
{ + (3) Hearings under this section shall be conducted by an
administrative law judge assigned from the Office of
Administrative Hearings established under section 3, chapter 849,
Oregon Laws 1999. + }
(4) All civil penalties recovered under ORS 527.610 to 527.770,
527.990 and 527.992 shall be paid to the General Fund.
SECTION 46. ORS 543.055, as amended by section 113, chapter
849, Oregon Laws 1999, is amended to read:
543.055. (1) The Water Resources Commission may hold hearings
and take testimony orally, by deposition or in such other form as
the commission considers satisfactory, either within or without
this state. The Water Resources Commission may require, by
subpoena, the attendance of witnesses and the production of
documentary evidence.
(2) { - The commission may appoint any person as a hearing
officer to conduct and preside over any - } { + An
administrative law judge assigned from the Office of
Administrative Hearings established under section 3, chapter 849,
Oregon Laws 1999, shall conduct any contested case + } hearing
that the commission is required or permitted by law to hold. The
{ - hearing officer - } { + administrative law judge + } has
the same powers with respect to the conduct of the hearing as are
granted by law to the commission, including the taking of
testimony, the signing and issuance of subpoenas and the
administering of oaths and affirmations to witnesses. The
{ - hearing officer - } { + administrative law judge + } shall
keep a record of the proceedings on the hearing and shall
transmit such record to the commission.
(3) The commission may designate any person to take the
testimony, affidavit or deposition of a witness. The person so
designated may administer an oath or affirmation to any such
witness and take the testimony thereof in accordance with such
rules as the commission may prescribe.
(4) Witnesses appearing before the commission or any person
designated by the commission to take testimony shall be paid the
fees and mileage provided for witnesses in ORS 44.415 (2).
SECTION 47. ORS 561.615, as amended by section 120, chapter
849, Oregon Laws 1999, is amended to read:
561.615. (1) The hearing shall be conducted by { - the
Director of Agriculture or by a hearing officer designated by the
director - } { + an administrative law judge assigned from the
Office of Administrative Hearings established under section 3,
chapter 849, Oregon Laws 1999 + }. The hearing shall be conducted
as provided for contested cases under ORS 183.310 to 183.550.
(2) If it appears that the products are not being stored, sold,
kept, offered or exposed for sale in violation of law, the
products shall be released to the owner or person in possession.
If it appears that all or part of such products may be
reconditioned or relabeled or segregated in such a way as to
comply with state laws, the owner or person in possession may
cause them to be reconditioned, relabeled or segregated at the
owner's or person's own expense, after which the department shall
release them. If it appears that all or a part of the products
may not be reconditioned, relabeled or segregated in such a way
as to comply with state laws, that portion of the products which
may not be so treated shall be destroyed, unless the owner or
person in possession executes and delivers to the department a
good and sufficient bond to the effect that the products shall
Enrolled House Bill 2526 (HB 2526-B) Page 41
not be sold, disposed of or used contrary to the laws of Oregon
and the rules, regulations or orders thereunder promulgated. If
any food products are found to be unfit for human consumption but
suitable for animal feeding, such food products may be used for
animal feeding as permitted by the department.
SECTION 48. ORS 656.704, as amended by sections 121c and 121e,
chapter 849, Oregon Laws 1999, is amended to read:
656.704. (1) Actions and orders of the Director of the
Department of Consumer and Business Services, and administrative
and judicial review thereof, regarding matters concerning a claim
under this chapter are subject to the procedural provisions of
this chapter and such procedural rules as the Workers'
Compensation Board may prescribe.
(2) Notwithstanding ORS 183.315 (1), actions and orders of the
director and the conduct of hearings and other proceedings
pursuant to this chapter, and judicial review thereof, regarding
all matters other than those concerning a claim under this
chapter, are subject to ORS 183.310 to 183.550 { - and such
procedural rules as the director may prescribe. The director may
make arrangements with the board chairperson pursuant to ORS
656.726 to obtain the services of Administrative Law Judges to
conduct such proceedings or may make other arrangements to obtain
personnel to conduct such proceedings - } . { + Except as
provided in subsections (4) and (5) of this section, contested
case hearings under this subsection shall be conducted by an
administrative law judge assigned from the Office of
Administrative Hearings established under section 3, chapter 849,
Oregon Laws 1999. + } The director by rule shall prescribe the
classes of orders issued by
{ - Administrative Law Judges - } { + administrative law
judges + } and other personnel that are final, appealable orders
and those orders that are preliminary orders subject to revision
by the director.
(3)(a) For the purpose of determining the respective authority
of the director and the board to conduct hearings, investigations
and other proceedings under this chapter, and for determining the
procedure for the conduct and review thereof, matters concerning
a claim under this chapter are those matters in which a worker's
right to receive compensation, or the amount thereof, are
directly in issue. However, subject to paragraph (b) of this
subsection, such matters do not include any disputes arising
under ORS 656.245, 656.248, 656.260, 656.327, any other
provisions directly relating to the provision of medical services
to workers or any disputes arising under ORS 656.340 except as
those provisions may otherwise provide.
(b) The respective authority of the board and the director to
resolve medical service disputes, other than disputes arising
under ORS 656.260, shall be determined according to the following
principles:
(A) Any dispute that requires a determination of the
compensability of the medical condition for which medical
services are proposed is a matter concerning a claim.
(B) Any dispute that requires a determination of whether
medical services are excessive, inappropriate, ineffectual or in
violation of the rules regarding the performance of medical
services, or a determination of whether medical services for an
accepted condition qualify as compensable medical services among
those listed in ORS 656.245 (1)(c), is not a matter concerning a
claim.
Enrolled House Bill 2526 (HB 2526-B) Page 42
(C) Any dispute that requires a determination of whether a
sufficient causal relationship exists between medical services
and an accepted claim to establish compensability is a matter
concerning a claim.
(D) The board and the director shall adopt rules to facilitate
the fair and orderly determination of disputes that involve
matters concerning a claim and additional issues. Such rules
shall first require the determination of those issues that are
matters concerning a claim.
{ + (4) If a hearing involves actions and orders of the
director that are subject to hearing under this section and also
involves issues subject to hearing by an Administrative Law Judge
from the board's Hearings Division, the director may direct that
the hearing be conducted by an Administrative Law Judge from the
board's Hearings Division in lieu of an administrative law judge
assigned from the Office of Administrative Hearings established
under section 3, chapter 849, Oregon Laws 1999.
(5) Hearings under ORS 656.740 shall be conducted by an
Administrative Law Judge from the board's Hearings Division. + }
SECTION 49. ORS 657.270, as amended by section 5, chapter 1067,
Oregon Laws 1999, is amended to read:
657.270. (1) When a request for hearing upon the claim has been
filed, as provided in ORS 657.266 to 657.269, { - a hearing
officer designated by the Director of the Employment
Department - } { + an administrative law judge from the Office
of Administrative Hearings established under section 3, chapter
849, Oregon Laws 1999, + } shall be assigned to conduct such
hearing. The Director { + of the Employment Department + } shall
also notify the parties, in plain language, of their right, upon
their request, to receive by mail copies of all documents and
records in the possession of the Employment Department relevant
to the decision of the authorized representative, including any
statements of the claimant, employer or employer's agents.
(2) When the hearing is conducted by telephone, the director
shall mail all parties copies of all documents and records in the
possession of the director that will be introduced at the hearing
as exhibits, including any statements of the claimant, employer
or employer's agents, and all jurisdictional documents, at least
seven days prior to the hearing. A party may request that the
hearing be continued in order to receive copies of and respond to
documentary evidence introduced at the hearing and not mailed to
the party prior to the hearing.
(3) After the { - hearing officer - } { + administrative
law judge + } has given all parties reasonable opportunity for a
fair hearing, the
{ - hearing officer - } { + administrative law judge + }
shall promptly affirm, modify or set aside the decision of the
authorized representative with respect to the claim and promptly
shall notify all parties entitled to notice of the decision of
the authorized representative, as set forth in ORS 657.266 to
657.269, of the
{ - hearing officer's - } { + administrative law judge's
+ }decision and reasons therefor. The { - hearing officer - }
{ + administrative law judge + } may address issues raised by
evidence in the record, including but not limited to the nature
of the separation, notwithstanding the scope of the issues raised
by the parties or the arguments in a party's request for hearing.
(4) Unless the director or any other party to the hearing,
within 20 days after the delivery of such notification, or if
mailed, within 20 days after the same was mailed to the party's
Enrolled House Bill 2526 (HB 2526-B) Page 43
last-known address, files with the Employment Appeals Board an
application for review, such decision shall be final.
(5) When the claimant or the employer is unrepresented at the
hearing, the { - hearing officer - } { + administrative law
judge + } shall explain the issues involved in the hearing and
the matters that the unrepresented claimant or the employer must
either prove or disprove. The { - hearing officer - } { +
administrative law judge + } 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 { - hearing officer - } { + administrative law judge + }
in the case. As used in this section, a claimant or employer is
'unrepresented' if not represented by an attorney, paralegal
worker, legal assistant, union representative or person otherwise
qualified by experience or training.
SECTION 50. ORS 657.280, as amended by section 128, chapter
849, Oregon Laws 1999, is amended to read:
657.280. (1) The manner in which disputed claims shall be
presented { - , - } { + and + } the reports thereon required
from the claimant and from the employers { - and the conduct of
hearings - } shall be in accordance with the regulations
prescribed by the Director of the Employment Department { - for
determining the rights of the parties, whether or not such
regulations conform to common law or statutory rules of evidence
and other technical rules of procedure - } .
(2) A full and complete record shall be kept of all proceedings
in connection with the disputed claim. All testimony at any
hearing upon a disputed claim shall be recorded but need not be
transcribed unless the disputed claim is appealed further.
SECTION 51. ORS 657.485, as amended by section 133, chapter
849, Oregon Laws 1999, is amended to read:
657.485. (1) An employer, when notified that the employer has
been determined an employer subject to this chapter, shall also
be notified of the tax rate for the employer as determined
pursuant to this chapter. Such tax rate shall become conclusive
and binding upon the employer unless within 20 days after the
mailing of the notice to the last-known address of the employer
as shown on the records of the Director of the Employment
Department, or in the absence of mailing, within 20 days after
the delivery of such notice, the employer files a request for
hearing with the director, setting forth the reason therefor.
(2) An employer whose rate has been determined in accordance
with the provisions of ORS 657.462, shall be notified of the tax
rate for the employer not later than November 15 of the year
preceding the calendar year for which the rate is applicable. An
employer whose account is open according to the Employment
Department records as of November 15 but whose tax rate was not
determined under ORS 657.462 shall be notified of the tax rate
for the following calendar year by November 15 or as soon as
possible thereafter. Such tax rate shall become conclusive and
binding upon the employer unless, within 20 days after the
mailing of the notice to the last-known address of the employer
as shown by the records of the director or, in the absence of
mailing, within 20 days after the delivery of such notice, the
employer files a written application for review and
redetermination with the director, setting forth the reasons
therefor.
(3) If a valid application is filed within the time provided in
subsection (2) of this section, an authorized representative of
the director shall review the determination and notify the
Enrolled House Bill 2526 (HB 2526-B) Page 44
employer in writing thereof. If the review results in a change in
either the employer's tax rate or information included on the
original tax rate notice, an amended notice shall be provided the
employer.
(4) The decision of the authorized representative reflecting
the result of the review provided for in subsection (3) of this
section shall become final and conclusive and binding upon the
employer unless the employer, within 20 days after delivery of
the notice, or if mailed, within 20 days after the same was
mailed to the last-known address of the employer, files a request
for hearing with the director. The request shall be in writing
and shall state that the decision of the authorized
representative is incorrect and the reasons therefor.
(5) When a valid request for hearing has been filed, as
provided in subsections (1) and (4) of this section, a hearing
shall be conducted by { - a hearing officer designated by the
director - } { + an administrative law judge assigned from the
Office of Administrative Hearings established under section 3,
chapter 849, Oregon Laws 1999, + } unless a hearing has
previously been afforded the employer on the same grounds as set
forth in the request. The
{ - hearing officer - } { + administrative law judge + }
shall give notice of the time and place of hearing to the
director or authorized representative of the director and shall
also give notice to the employer by mail directed to the
last-known address of record with the director. Hearings under
this subsection shall be conducted in accordance with this
chapter { - and the rules of the director - } . The filing of a
request for hearing with respect to a disputed tax rate shall not
affect the right of the director or authorized representative of
the director to perfect any liens provided by this chapter.
(6) After hearing, the { - hearing officer - } { +
administrative law judge + } shall enter findings of fact and
decision either affirming or modifying the tax rate notice. The
employer and the director shall be promptly notified of the
decision of the { - hearing officer - } { + administrative
law judge + }. All testimony at any hearing held before { - a
hearing officer - } { + an administrative law judge + } under
this section shall be recorded but need not be transcribed unless
a petition for judicial review from the decision of the
{ - hearing officer - } { + administrative law judge + } is
filed in the manner and within the time prescribed in ORS
657.487.
(7) A decision of the { - hearing officer shall become - }
{ + administrative law judge is + } final on the date of
notification or the mailing thereof to the director and to the
employer at the last-known address of record with the director,
and shall become conclusive and binding upon the employer and the
director unless a petition for judicial review is filed in the
manner and within the time prescribed in ORS 657.487.
(8) No employer shall have any standing, in any proceeding
involving tax rate or tax liability, to contest the chargeability
to the account of the employer of any benefits paid in accordance
with a determination, redetermination or decision pursuant to ORS
657.265, 657.266 to 657.269 and 657.270 to 657.290, except upon
the ground that the services on the basis of which such benefits
were found to be chargeable did not constitute services performed
in employment for the employer or for a predecessor employer and
only in the event that the employer or the predecessor was not a
party to such determination, redetermination or decision or to
Enrolled House Bill 2526 (HB 2526-B) Page 45
any other proceeding under this chapter in which the character of
such service was determined. At any hearing under this section
the tax rate determined by the director or authorized
representative of the director shall be prima facie correct and
the burden shall be upon the protesting employer to prove it is
incorrect.
SECTION 52. ORS 657.610, as amended by section 138, chapter
849, Oregon Laws 1999, and section 33, chapter 684, Oregon Laws
2001, is amended to read:
657.610. The Director of the Employment Department may:
(1) For purposes of administration and control, and with the
approval of the Governor, organize and reorganize the department
in whatever manner the director considers appropriate to carry
out the duties, functions and powers of the department.
(2) Appoint all subordinate officers and employees of the
department, whether classified or unclassified, and prescribe
their duties and compensation, subject to applicable provisions
of the State Personnel Relations Law.
(3) Delegate to departmental officers and employees such
responsibility and authority as the director determines
necessary.
(4) Determine all questions of general policy and promulgate
rules and regulations and be responsible for the administration
of this chapter.
(5) Sue and be sued in the name of the director, and shall have
a seal bearing the name of the Employment Department.
(6) Adopt proper rules to { - govern proceedings and to - }
regulate the mode and manner of all investigations { - and
hearings before hearing officers appointed by the director - } .
(7) Prescribe the time, place and manner of making claims for
benefits under this chapter, the kind and character of notices
required thereunder and the procedure for investigating and
deciding claims.
(8) Enter into contracts relating to the federal Workforce
Investment Act deemed necessary by the director to fulfill the
mission of the department. The director may enter into contracts
with other states or governments, public bodies or persons to
provide or receive services. Contracts entered into by the
director shall be executed in the name of the state, by and
through the Employment Department.
SECTION 53. ORS 657.630, as amended by section 141, chapter
849, Oregon Laws 1999, is amended to read:
657.630. The Director of the Employment Department may act in
the director's own behalf or by any of the duly authorized agents
or assistants of the director in the following:
(1) To hold sessions at any place within the state.
(2) To administer oaths.
(3) To issue and serve by the director's representative, or by
any sheriff, subpoenas for the attendance of witnesses and the
production of papers, contracts, books, accounts, documents and
testimony. The director may require the attendance and testimony
of employers, their officers and representatives before any
hearing of the director and the production by employers of books,
records, papers and documents without payment or tender of
witness fees on account of that attendance. { - The director or
the authorized agent of the director shall issue subpoenas to any
party upon request upon a showing of general relevance,
reasonable scope of the evidence sought and that the testimony
would not be unduly repetitious. No showing of general relevance
or reasonable scope of the evidence sought shall be required upon
Enrolled House Bill 2526 (HB 2526-B) Page 46
the request for a subpoena of a claimant's personnel records. - }
(4) Generally to provide for the taking of testimony and for
the recording of proceedings held in accordance with this
chapter.
SECTION 54. ORS 657.663, as amended by section 144, chapter
849, Oregon Laws 1999, is amended to read:
657.663. (1) If an employer fails to file a required quarterly
tax report or quarterly detail of employees' wages and hours of
work by the 10th day of the second month following the end of the
calendar quarter, the Director of the Employment Department, for
the first such failure, shall send to the employer at the
employer's last-known address a written notice warning the
employer that a subsequent failure to file a required report
could result in the imposition of a late filing penalty. If an
employer, without good cause, fails to file a required report
within the three-year period immediately following a written
warning, the employer may be assessed a late filing penalty in
addition to other amounts due. The penalty shall be 0.0002 of the
taxable wage base in effect for the year against which the
penalty is being assessed for each employee listed each quarter
on the late filed reports. However, the minimum penalty for any
calendar quarter shall not be less than 0.0025 nor the maximum
penalty more than 0.05 of the taxable wage base in effect for the
year.
(2) The penalty per employee shall be rounded to the nearest
dollar. The minimum penalty shall be rounded to the nearest
five-dollar interval and the maximum penalty shall be rounded to
the nearest $100 interval.
(3) Notwithstanding the provisions of subsection (1) of this
section, an employer who has no payroll during a calendar quarter
shall not be assessed a penalty for the first quarter in which
that employer's report is filed late. Thereafter, the director
may assess a $5 penalty when such employer's reports continue to
be filed late.
(4) The penalty assessed under this section shall be final
unless, within 20 days from the date of mailing of the assessment
to the last-known address of the employer, the employer requests
the penalty be deleted. The request must be in writing and state
the reason why the report was filed late. If the director
determines the employer had good cause for filing the report
late, the penalty shall be deleted. If it is determined there was
not good cause for filing the report late, the request for
deletion shall be denied.
(5) A decision denying the request shall become final, unless
within 20 days from the date of mailing the decision to the
last-known address of the employer, the employer files a request
for hearing. The request for a hearing must be in writing and
state the reasons therefor. { - Hearings shall be conducted in
accordance with rules adopted by the director. - } Judicial
review shall be as provided for review of orders in contested
cases in ORS 183.310 to 183.550, except that the petition shall
be filed within 20 days after the issuance of the order of the
director or a designated representative.
SECTION 55. ORS 657.683, as amended by section 151, chapter
849, Oregon Laws 1999, is amended to read:
657.683. (1) An application for hearing under ORS 657.679 and
657.681 shall be in writing and shall state that such
determination or assessment of the Director of the Employment
Department or authorized representative is unjust or incorrect
Enrolled House Bill 2526 (HB 2526-B) Page 47
and that the employing unit requests a hearing thereon. The
application shall set forth the objections of the employing unit
to the determination or assessment and the amount of
contributions, if any, which the applicant admits to be due to
the Employment Department. An application for a hearing to review
an assessment made under ORS 657.681 (4) which was accompanied by
a demand for a bond or deposit shall not be valid unless such
bond or deposit is filed with the application in a form
acceptable to the director or authorized representative.
(2) If a valid application for hearing is filed within the time
provided by ORS 657.679 and 657.681, { - a hearing officer
designated by the director - } { + an administrative law
judge + } shall review the determination or assessment and if
requested by the employing unit shall grant a hearing unless a
hearing has previously been afforded the employing unit on the
same grounds as set forth in the application. The { - hearing
officer - } { + administrative law judge + } shall give notice
of the time and place of the hearing to the director or
authorized representative and shall also give notice to the
employing unit by mail directed to the last-known address of the
employing unit of record with the director.
(3) Hearings under ORS 657.679 and 657.681 shall be conducted
in accordance with this chapter { - and the rules and
regulations of the director - } . The filing of an application
for hearing with respect to a disputed assessment shall not
affect the right of the director or authorized representative to
perfect any liens provided by this chapter.
(4) All testimony at any hearing held under ORS 657.679 and
657.681 shall be recorded but need not be transcribed unless a
petition for judicial review from the decision of the
{ - hearing officer - } { + administrative law judge + } is
filed in the manner and within the time prescribed. At any
hearing held as provided in ORS 657.679 and 657.681 the
determination or assessment of the director or authorized
representative shall be prima facie correct and the burden shall
be upon the protesting employing unit to prove that it is
incorrect. Thereafter the { - hearing officer - }
{ + administrative law judge + } shall enter the findings of
fact and decision, either affirming, modifying, or setting aside
the determination or assessment of the director or authorized
representative and in the case of an assessment, the
{ - hearing officer - } { + administrative law judge + } may
increase or decrease the amount of the assessment. The employing
unit and the director shall be promptly notified of the decision
of the { - hearing officer - } { + administrative law
judge + }.
(5) A decision of the { - hearing officer - } { +
administrative law judge + } shall become final on the date of
notification or the mailing thereof to the director and to the
employing unit at the last-known address of record with the
director unless within the time specified in ORS 183.480 (2) the
{ - hearing officer - } { + administrative law judge + } on the
{ - hearing officer's - } { + administrative law judge's + }
own motion reviews the same and issues an amended decision in
which case the amended decision becomes the final decision.
SECTION 56. ORS 671.703, as amended by section 4, chapter 198,
Oregon Laws 2001, is amended to read:
671.703. (1) If a person has a claim against a licensed
landscaping business for negligent or improper work performed by
the landscaping business, or for alleged breach of contract by
Enrolled House Bill 2526 (HB 2526-B) Page 48
the landscaping business, the person may file the claim with the
State Landscape Contractors Board.
(2) Upon receipt of a claim that qualifies under subsection (1)
of this section, the board shall initiate an investigation. Upon
completion of the investigation, if the board determines that
facts exist supporting an order for payment, the board may order
the landscaping business to pay the claim. A party to the claim
may request a hearing on the order issued by the board.
(3) Subject to subsection (6) of this section, if the
resolution of a claim under this section requires a hearing, the
board may require that the hearing be conducted as a binding
arbitration under rules adopted by the board under subsection (5)
of this section.
(4) The board may use arbitration to resolve a landscaping
dispute between any parties who agree to follow the rules of the
board, including parties to a dispute not described under
subsection (1) of this section.
(5) Rules adopted by the board to regulate arbitration under
subsections (3) and (4) of this section must substantially
conform with the provisions of ORS 36.300 to 36.365. The rules
may include, but are not limited to, requirements that:
(a) The arbitrator send copies of an arbitration award to the
parties and the board and allow the parties an opportunity to
request reconsideration of the award;
(b) The arbitrator address in writing any issue raised in a
request for reconsideration of the award;
(c) The arbitrator delay submitting to the clerk of the circuit
court an arbitration award that is or may become subject to a
request for reconsideration; and
(d) The request for reconsideration and the arbitrator's
response to the request, including any matter the arbitrator is
required to address, be included with the award of the arbitrator
and the written agreement to submit that is sent to the clerk of
the circuit court under ORS 36.350.
(6) A party to a claim that is subject to a board order of
binding arbitration under subsection (3) of this section may
avoid the arbitration if the party requests to have the claim
resolved through a contested case hearing or files a complaint in
a court. A party making a request or filing a complaint under
this subsection is subject to the following provisions:
(a) If the party requests to have a claim resolved through a
contested case hearing, the party must, within the time specified
in paragraph (c) of this subsection, deliver the request in
writing to the board and to all parties entitled by board rule to
receive a copy of the request.
(b) If the party files a complaint in a court, the party must,
within the time specified in paragraph (c) of this subsection,
deliver a copy of the complaint to the board and to all parties
entitled by the board rule to receive a copy of the complaint. If
the party filing the complaint is the claimant, the claimant must
allege all elements of the claim in the complaint. If the
complaint is filed by the licensed landscaping business against
whom a claim is alleged, the complaint may be a complaint for
damages, a complaint for declaratory judgment or other complaint
that allows the claimant to file a response alleging the elements
of the claim. The claimant has the burden of proving the elements
of the claim in any action described in this paragraph.
(c) A party that is subject to paragraph (a) or (b) of this
subsection must deliver a request or complaint to the board as
described in paragraphs (a) and (b) of this subsection no later
Enrolled House Bill 2526 (HB 2526-B) Page 49
than the 30th day after the board sends notice that an
arbitration hearing has been scheduled. Failure to timely deliver
a request or complaint under this paragraph constitutes consent
to the binding arbitration.
(d) If a party makes a timely request under paragraph (a) of
this subsection for a contested case hearing and another party
timely files a complaint in compliance with paragraph (b) of this
subsection, the filing of the complaint supersedes the request
for a contested case hearing.
(e) A party may not withdraw a request made in compliance with
paragraph (a) of this subsection unless all parties agree to the
withdrawal.
(f) The provisions of paragraph (b) of this subsection are in
addition to any other requirements imposed by law regarding the
filing of a complaint.
(7) An arbitration conducted under subsection (3) or (4) of
this section must be held before { - a hearing officer
designated by the board to act - } { + an administrative law
judge acting + } as arbitrator. { + The administrative law judge
assigned to act as arbitrator of the case on behalf of the board
must be from the Office of Administrative Hearings established
under section 3, chapter 849, Oregon Laws 1999. The assignment of
an administrative law judge to act as arbitrator is subject to a
request for a different arbitrator under section 11, chapter 849,
Oregon Laws 1999, or a rule adopted pursuant to section 11,
chapter 849, Oregon Laws 1999. + }
(8) If a party to a claim under subsection (1) of this section
requests a contested case hearing, the board shall schedule the
hearing. If a party requests that the claim be resolved by a
court, the board shall suspend further processing of the claim
until the claim is resolved by an appropriate court.
(9) If the claim is submitted for determination by a court, the
board may require that the claimant provide status reports on the
pending action. The board may dismiss or close a claim filed
under subsection (1) of this section as established by rule of
the board if the claimant fails to submit status reports on a
pending action.
(10) The board shall issue a final order or arbitration award
in a form that indicates the maximum amount payable from the
deposit, bond or letter of credit. If the landscaping business
does not pay the claim on or before the 30th day after receiving
the board order or award, the board shall order the claim paid
out of the deposit, bond or letter of credit filed under ORS
671.690.
(11) The board may dismiss or close a claim as established by
rule of the board if:
(a) The claimant does not permit the person against whom the
claim is filed to be present at any inspection made by the board;
or
(b) The board determines that the person against whom the claim
is filed is capable of complying with recommendations made by the
board relative to the claim, but the claimant does not permit the
person to comply with the recommendations. The board may dismiss
or close a claim under this paragraph only if the person was
licensed at the time the work was first performed and is licensed
at the time the board makes its recommendations.
(12) The board may suspend processing a claim if the board
determines that the nature or complexity of the claim is such
that a court is the appropriate forum for the adjudication of the
claim.
Enrolled House Bill 2526 (HB 2526-B) Page 50
SECTION 57. ORS 677.275, as amended by section 158, chapter
849, Oregon Laws 1999, is amended to read:
677.275. { + (1) + } The Board of Medical Examiners for the
State of Oregon may appoint { - : - }
{ - (1) - } an executive director, who need not be a member
of the board, and fix the compensation. The executive director
shall be under the supervision and control of the board, and may
discharge all duties as provided in the rules of the board or as
directed by the board.
(2) { - One or more hearing officers, who need not be members
of the board, and fix their compensation. - } Each { - hearing
officer - } { + administrative law judge + } conducting hearings
on behalf of the board is vested with the full authority of the
board to schedule and conduct hearings on behalf and in the name
of the board on all matters referred by the board, including
issuance of licenses, proceedings for placing licensees on
probation and for suspension and revocation of licenses, and
shall cause to be prepared and furnished to the board, for
decision thereon by the board, the complete written transcript of
the record of the hearing. This transcript shall contain all
evidence introduced at the hearing and all pleas, motions and
objections, and all rulings of the
{ - hearing officer - } { + administrative law judge + }.
Each { - hearing officer - } { + administrative law judge + }
may administer oaths and issue summonses, notices and subpoenas,
but may not place any licensee on probation or issue, refuse,
suspend or revoke a license.
SECTION 58. ORS 678.780, as amended by section 161, chapter
849, Oregon Laws 1999, is amended to read:
678.780. (1) The sanctions authorized by subsection (2) of this
section may be imposed upon the following grounds:
(a) The employment of fraud or deception in applying for or
obtaining a nursing home administrator's license.
(b) Engaging in conduct in the course of acting as a nursing
home administrator involving fraud, dishonesty, malfeasance,
cheating or other conduct as the Board of Examiners of Nursing
Home Administrators of the State of Oregon may prohibit by rule.
(c) Conviction of a crime involving circumstances that relate
to the licensee's fitness to continue practicing as a nursing
home administrator.
(d) Mistake or inadvertence in the issuance of the license by
the board.
(e) Physical or mental incapacity that presents an unreasonable
risk of harm to the licensee or to the person or property of
others in the course of performing the duties of a nursing home
administrator.
(f) Use of any controlled substance or intoxicating liquor in a
manner that impairs the licensee's ability to conduct safely the
practice for which the licensee is licensed.
(g) The licensee has engaged in conduct that would justify
denying a license to an applicant.
(h) Violation of or noncompliance with any applicable
provisions of ORS 678.710 to 678.780, 678.800 to 678.840 and
678.990 (2) or of any lawful rule or order of the board or
continuous or substantial violations of the rules adopted under
ORS 441.055.
(i) Discipline imposed by any other licensing body in this or
any other state based on conduct that would be grounds for
discipline under this section or rules adopted by the board.
Enrolled House Bill 2526 (HB 2526-B) Page 51
(j) Incompetence in performing the duties of a nursing home
administrator as demonstrated by evidence that the licensee
either lacks or did not use the knowledge or skill necessary to
perform the administrator's duties in a minimally adequate
manner.
(k) Employing or otherwise assisting another person to act as a
nursing home administrator with knowledge that the person does
not hold a valid license to practice as a nursing home
administrator.
(L) Failure to pay a civil penalty imposed against the licensee
in a timely manner.
(m) Unprofessional conduct as defined in rules adopted by the
board.
(2) Subject to ORS 183.310 to 183.550, the board may impose any
or all of the following sanctions:
(a) Suspend, revoke or refuse to renew any license required by
ORS 678.720.
(b) A civil penalty not to exceed $1,000.
(c) Probation, with authority to limit or restrict a license.
(d) Participation in a treatment program for intoxicating
liquor or controlled substances.
(3) Hearings under this section must be conducted by { - a
hearing officer designated by the board - } { + an
administrative law judge assigned from the Office of
Administrative Hearings established by section 3, chapter 849,
Oregon Laws 1999 + }.
(4) Information that the board obtains as part of an
investigation into licensee or applicant conduct or as part of a
contested case proceeding, consent order or stipulated agreement
involving licensee or applicant conduct is confidential as
provided under ORS 676.175.
SECTION 59. ORS 687.086, as amended by section 167, chapter
849, Oregon Laws 1999, and section 15a, chapter 1084, Oregon Laws
1999, is amended to read:
687.086. (1) If the State Board of Massage Therapists proposes
to impose any of the sanctions authorized in ORS 687.081 or take
other disciplinary action, opportunity for hearing shall be
accorded as provided in ORS 183.310 to 183.550. Hearings under
this section must be conducted by { - a hearing officer
designated by the board - } { + an administrative law judge
assigned from the Office of Administrative Hearings established
by section 3, chapter 849, Oregon Laws 1999 + }.
(2) Promulgation of rules, conduct of hearings, issuance of
orders and judicial review of rules and orders shall be as
provided in ORS 183.310 to 183.550.
SECTION 60. ORS 693.105, as amended by section 170, chapter
849, Oregon Laws 1999, is amended to read:
693.105. (1) Where the State Plumbing Board proposes to refuse
to issue or renew any certificate under this chapter, or proposes
to revoke or suspend any such certificate, opportunity for
hearing shall be accorded as provided in ORS 183.310 to 183.550.
(2) Promulgation of rules, conduct of hearings, issuance of
orders and judicial review of rules and orders shall be in
accordance with ORS 183.310 to 183.550.
(3) Hearings under this section must be conducted by { - a
hearing officer designated by the board - } { + an
administrative law judge assigned from the Office of
Administrative Hearings established by section 3, chapter 849,
Oregon Laws 1999 + }.
Enrolled House Bill 2526 (HB 2526-B) Page 52
SECTION 61. ORS 701.147, as amended by section 7b, chapter 414,
Oregon Laws 2001, is amended to read:
701.147. (1) If a party to a claim under ORS 701.145 requests a
contested case hearing, the Construction Contractors Board shall
schedule the hearing. If a claim is filed in a court, the board
shall suspend further processing of the claim until the claim is
resolved by an appropriate court.
(2) If the claim is submitted for determination by a court, the
board may require that the claimant provide status reports on the
pending action. The board may dismiss or close a claim filed
under ORS 701.145 if the claimant fails to submit status reports
on a pending action.
(3) An arbitration conducted under ORS 701.148 (1) or (2) must
be held before { - a hearing officer designated by the board to
act as arbitrator - } { + an administrative law judge acting as
arbitrator. The administrative law judge assigned to act as
arbitrator of the case on behalf of the board must be from the
Office of Administrative Hearings established under section 3,
chapter 849, Oregon Laws 1999. The assignment of an
administrative law judge to act as arbitrator is subject to a
request for a different arbitrator under section 11, chapter 849,
Oregon Laws 1999, or a rule adopted pursuant to section 11,
chapter 849, Oregon Laws 1999 + }.
(4) Contested case hearings before the board must be conducted
by { - the board or a hearing officer designated by the
board - } { + an administrative law judge assigned from the
Office of Administrative Hearings established by section 3,
chapter 849, Oregon Laws 1999 + }. Notwithstanding ORS 670.325,
the board may delegate authority to the { - hearing officer - }
{ + administrative law judge + } to issue a final order in any
matter.
{ + (5) Sections 2 to 21, chapter 849, Oregon Laws 1999, do
not limit in any way the ability of the board to make full use of
alternative dispute resolution, including mediation or
arbitration, to resolve claims against contractors filed under
ORS 701.143.
(6) In assigning administrative law judges for arbitration and
contested case hearings conducted under the provisions of this
section, the chief administrative law judge of the Office of
Administrative Hearings established under section 3, chapter 849,
Oregon Laws 1999, shall defer to board requests. + }
{ - (5) - } { + (7) + } The board, by rule, may require a
deposit not to exceed $100 for the filing of a claim, a request
for hearing or exceptions. The prevailing party may recover a
deposit required by this subsection.
SECTION 62. ORS 737.209, as amended by section 176, chapter
849, Oregon Laws 1999, is amended to read:
737.209. (1) The Director of the Department of Consumer and
Business Services may hold a hearing on a filing made pursuant to
ORS 737.207 if the director determines that such a hearing would
aid the director in determining whether to approve or disapprove
the filing. A hearing under this section may be held at a place
designated by the director and upon not less than 10 days'
written notice to the insurer or rating organization that made
the filing and to any other person the director decides should be
notified. A filing that is the subject of a hearing under this
section becomes effective, if approved, as provided in subsection
(4) of this section.
(2) A hearing held pursuant to subsection (1) of this section
Enrolled House Bill 2526 (HB 2526-B) Page 53
{ - may - } { + must + } be conducted by { - a hearing
officer designated by the director - } { + an administrative
law judge assigned from the Office of Administrative Hearings
established under section 3, chapter 849, Oregon Laws 1999 + }.
The { - hearing officer - } { + administrative law judge + }
shall report findings, conclusions and recommendations to the
director within 30 days of the close of the hearing. The insurer
or rating organization proposing the rate filing shall have the
burden of proving that the rate proposal is justified and shall
pay to the director the fair and reasonable costs of the hearing,
including actual necessary expenses.
(3) Within 10 days of receiving a report from the { - hearing
officer - } { + administrative law judge + }, the director
shall issue an order approving or disapproving the filing.
(4) An order issued under subsection (3) of this section may be
reviewed as provided in ORS 183.480 to 183.550 for review of
contested cases. A filing approved by the director under this
section shall be effective 10 days after the order issued under
subsection (3) of this section and shall remain effective during
any review of the order.
SECTION 63. ORS 776.129, as amended by section 179, chapter
849, Oregon Laws 1999, is amended to read:
776.129. When the Oregon Board of Maritime Pilots establishes
rates described in ORS 776.115 (5), the { - board shall
contract with the Public Utility Commission of Oregon for the use
of hearing officers employed by the commission to conduct the
rate proceeding - } { + hearing shall be conducted by an
administrative law judge assigned from the Office of
Administrative Hearings established under section 3, chapter 849,
Oregon Laws 1999 + }. The
{ - hearing officer - } { + administrative law judge + }
shall have the same authority as prescribed in ORS 776.115 (6)
for the conduct of the proceeding. A proposed order issued by the
{ - hearing officer - } { + administrative law judge + } shall
be submitted to the board for its adoption, remand or rejection.
The { - hearing officer - } { + administrative law judge + }
and the board may receive and consider recommendations made by
the Economic and Community Development Department and the Port of
Portland.
SECTION 64. ORS 776.375, as amended by section 182, chapter
849, Oregon Laws 1999, is amended to read:
776.375. (1) Where the Oregon Board of Maritime Pilots proposes
to refuse to issue or renew a license to pilot, or proposes to
revoke or suspend a license or proposes to issue a written
reprimand, opportunity for hearing shall be accorded as provided
in ORS 183.310 to 183.550.
(2) Adoption of rules, conduct of hearings, issuance of orders
and judicial review of rules and orders shall be as provided in
ORS 183.310 to 183.550. Contested case hearings { - may - }
{ + shall + } be conducted by { - a member of the board or by
a hearing officer designated by the board - } { + an
administrative law judge assigned from the Office of
Administrative Hearings established under section 3, chapter 849,
Oregon Laws 1999 + }.
SECTION 65. ORS 809.040, as amended by section 185, chapter
849, Oregon Laws 1999, is amended to read:
809.040. (1) When a hearing is required under ORS 809.020 or
809.050, the Department of Transportation shall afford a person
an opportunity of a hearing before the department suspends or
Enrolled House Bill 2526 (HB 2526-B) Page 54
revokes vehicle registration. A hearing described by this
subsection is subject to all of the following:
(a) Before the hearing, the department shall provide the person
with notice meeting the requirements under ORS 809.430.
(b) The hearing, if requested, shall be { - conducted by a
hearing officer designated by the department - } in the county
wherein the person resides unless the person and the department
agree to hold it elsewhere.
(c) The hearing shall be conducted as a contested case in
accordance with ORS 183.310 to 183.550.
{ + (d) The hearing shall be conducted by an administrative
law judge assigned from the Office of Administrative Hearings
established under section 3, chapter 849, Oregon Laws 1999. + }
(2) The hearing requirements under this section do not apply in
any case where the department finds a serious danger to the
public safety and sets forth specific reasons for such finding.
(3) Judicial review of orders suspending or revoking
registration under this section shall be as provided in ORS
183.310 to 183.550.
SECTION 66. ORS 809.440, as amended by section 191, chapter
849, Oregon Laws 1999, is amended to read:
809.440. This section establishes hearing and administrative
review procedures to be followed when the Department of
Transportation is required to provide a hearing or an
administrative review of an action.
(1) When other procedures described under this section are not
applicable to a suspension or revocation under ORS 809.410, the
procedures described in this subsection shall be applicable. All
of the following apply to this subsection:
(a) The hearing shall be given before the department imposes
the suspension or revocation of driving privileges or continues,
modifies or extends a suspension or revocation.
(b) Before the hearing, the department shall notify the person
in the manner described in ORS 809.430.
(c) The hearing shall be { - conducted by a hearing officer
designated by the department - } in the county where the person
resides unless the person and the department agree otherwise.
(d) Upon such hearing, the department, good cause appearing
therefor, may impose, continue, modify or extend the suspension
or revocation of the driving privileges.
{ + (e) The hearing shall be conducted by an administrative
law judge assigned from the Office of Administrative Hearings
established under section 3, chapter 849, Oregon Laws 1999. + }
(2) The following apply when administrative review is provided
under any statute or rule of the department:
(a) An administrative review shall consist of an informal
administrative process to assure prompt and careful review by the
department of the documents upon which an action is based.
(b) It shall be a defense to the department's action if a
petitioner can establish that:
(A) A conviction on which the department's action is based was
for an offense that did not involve a motor vehicle and the
department's action is permitted only if the offense involves a
motor vehicle.
(B) An out-of-state conviction on which the department's action
is based was for an offense that is not comparable to an offense
under Oregon law.
(C) The records relied on by the department identify the wrong
person.
Enrolled House Bill 2526 (HB 2526-B) Page 55
(c) A person requesting administrative review has the burden of
showing by a preponderance of the evidence that the person is not
subject to the action.
(d) Actions subject to administrative review shall be exempt
from the provisions of ORS 183.310 to 183.550 applicable to
contested cases, and from the provisions of subsection (4) of
this section applicable to post-imposition hearings. A
suspension, revocation or cancellation shall not be stayed during
the administrative review process or by the filing of a petition
for judicial review. A court having jurisdiction may order the
suspension, revocation or cancellation stayed pending judicial
review.
(e) Judicial review of a department order affirming a
suspension or revocation after an administrative review shall be
available as for review of orders other than contested cases, and
the department may not be subject to default for failure to
appear in such proceedings. The department shall certify its
record to the court within 20 days after service upon the
department of the petition for judicial review.
(f) If the suspension or revocation is upheld on review by a
court, the suspension or revocation shall be imposed for the
length of time appropriate under the appropriate statute except
that the time shall be reduced by any time prior to the
determination by the court that the suspension or revocation was
in effect and was not stayed.
(g) The department shall adopt any rules governing
administrative review that are considered necessary or convenient
by the department.
(3) When permitted under this section or under any other
statute, a hearing may be expedited under procedures adopted by
the department by rule. The procedures may include a limited time
in which the person may request a hearing, requirements for
telephone hearings, expedited procedures for issuing orders and
expedited notice procedures.
(4) When permitted under ORS 809.410, a hearing may be a
post-imposition hearing under this subsection. A post-imposition
hearing is a hearing that occurs after the department imposes the
suspension or revocation of driving privileges or continues,
modifies or extends a suspension or revocation. All of the
following apply to this subsection:
(a) The department must provide notice in the manner described
in ORS 809.430 before the suspension or revocation may take
effect.
(b) Except as provided in this subsection, the hearing shall be
conducted as a contested case in accordance with ORS 183.310 to
183.550.
(c) Unless there is an agreement between the person and the
department that the hearing be conducted elsewhere, the hearing
shall be held either in the county where the person resides or at
any place within 100 miles, as established by the department by
rule.
(5) The department has complied with a requirement for a
hearing or administrative review if the department has provided
an opportunity for hearing or review and the person with the
right to the hearing or review has not requested it. Any request
for hearing or review must be made in writing.
(6) For any hearing described under this section, and for
administrative review described under this section, no further
notice need be given by the department if the suspension or
revocation is based upon a conviction and the court gives notice,
Enrolled House Bill 2526 (HB 2526-B) Page 56
in a form established by the department, of the rights to a
hearing or review and of the suspension or revocation.
SECTION 67. ORS 813.410, as amended by section 194, chapter
849, Oregon Laws 1999, is amended to read:
813.410. (1) If the Department of Transportation receives from
a police officer a report that is in substantial compliance with
ORS 813.120, the department shall suspend the driving privileges
of the person in this state on the 30th day after the date of
arrest or, if the report indicates that the person failed a blood
test, on the 60th day after receipt of the report, unless, at a
hearing described under this section, the department determines
that the suspension would not be valid as described in this
section. A suspension of driving privileges imposed under this
subsection shall be for a period of time established under ORS
813.420.
(2) If the department receives from a police officer a report
pursuant to ORS 813.120 that discloses that the person was
driving a commercial motor vehicle and refused to submit to a
test under ORS 813.100 or submitted to a breath or blood test and
the person's blood, as shown by the test, had .04 percent or more
by weight of alcohol, the department shall suspend the person's
commercial driver license on the 30th day after the date of
arrest or, if the report indicates that the person failed a blood
test, on the 60th day after receipt of the report, unless, at a
hearing described under this section, the department determines
that the suspension would not be valid as described in this
section. A commercial driver license suspension imposed under
this subsection shall be for a period of time established under
ORS 813.404.
(3) If within 10 days from the date of arrest, or, if the
person fails a blood test, within 10 days from the date the
department sends notice of suspension, the department receives a
written request for a hearing from a person whose driving
privileges or commercial driver license the department proposes
to suspend under this section, the department shall provide a
hearing in accordance with this section. Except as otherwise
provided under this section, a hearing held by the department
under this section shall be subject to the provisions for
contested cases, other than appeal provisions, under ORS 183.310
to 183.550. The applicable appeal provisions are as provided
under ORS 813.450 and section 24, chapter 672, Oregon Laws 1985.
Notwithstanding ORS 809.430, the department is not required to
give any notice of intent to suspend or suspension in addition to
that provided under ORS 813.100.
(4) A hearing required by this section is subject to all of the
following:
(a) The hearing shall be before { - a hearing officer
designated by the department - } { + an administrative law
judge assigned from the Office of Administrative Hearings
established under section 3, chapter 849, Oregon Laws 1999 + }.
(b) Unless there is an agreement between the person and the
department that the hearing be conducted elsewhere, the hearing
shall be held either in the county where the alleged offense
occurred or at any place within 100 miles of the place where the
offense is alleged to have occurred, as established by the
department by rule.
(c) The department may authorize the { - hearing officer - }
{ + administrative law judge + } to issue a final order in any
case.
Enrolled House Bill 2526 (HB 2526-B) Page 57
(d) A person who requests a hearing under this section and who
fails, without just cause, to appear in person or through an
attorney waives the right to a hearing notwithstanding the
provisions of ORS 183.415. If a person waives a right to a
hearing under this paragraph, the department is not required to
make any showing at hearing.
(e) Except as provided in ORS 813.440 or upon remand under ORS
813.450, the department shall hold the hearing and issue a final
order within 30 days of the date of the arrest or, if the person
fails a blood test, within 60 days from the date the department
received the report of the failure.
(f) In connection with the hearing, the department or its
authorized representative may administer oaths and shall issue
subpoenas for the attendance of witnesses at the hearing
requested by the person or the department and the production of
relevant documents.
(g) The hearing shall be recorded by whatever means may be
determined by the department and shall include testimony and
exhibits, if any. The record of the proceedings shall not be
transcribed unless requested by a party to the proceeding.
(5) This subsection shall be narrowly construed so as to effect
the legislative purpose of limiting the scope of hearings under
this section. The scope of a hearing under this section shall be
limited to whether the suspension is valid as described in this
subsection. A suspension under this section is valid if all of
the following requirements have been met:
(a) The person, at the time the person was requested to submit
to a test under ORS 813.100, was under arrest for driving while
under the influence of intoxicants in violation of ORS 813.010 or
a municipal ordinance.
(b) The police had reasonable grounds to believe, at the time
the request was made, that the person arrested had been driving
under the influence of intoxicants in violation of ORS 813.010 or
of a municipal ordinance.
(c) The person refused a test under ORS 813.100, or took a
breath or blood test and the test disclosed that the level of
alcohol in the person's blood at the time of the test was:
(A) .08 percent or more by weight if the person was not driving
a commercial motor vehicle;
(B) .04 percent or more by weight if the person was driving a
commercial motor vehicle; or
(C) Any amount if the person was under 21 years of age.
(d) If the report under ORS 813.120 indicates that the person
was driving a commercial motor vehicle, the vehicle was in fact a
commercial motor vehicle as defined in ORS 801.208.
(e) The person had been informed under ORS 813.100 of rights
and consequences as described under ORS 813.130.
(f) The person was given written notice required under ORS
813.100.
(g) If the person arrested submitted to a test under ORS
813.100, the person administering the test was qualified to
administer the test under ORS 813.160.
(h) If the person arrested submitted to a test under ORS
813.100, the methods, procedures and equipment used in the test
complied with requirements under ORS 813.160.
(6) A suspension imposed under this section shall remain in
effect pending any appeal or remand of a final order issued under
this section and there shall be no stay of the suspension pending
appeal or remand.
Enrolled House Bill 2526 (HB 2526-B) Page 58
(7) Unless a person fails, without just cause, to appear in
person or through an attorney at a hearing requested under this
section, a person shall have the right to appeal any final order
by the department after a hearing under this section by filing a
petition. The following apply to this subsection:
(a) The person shall file the petition in the circuit court for
the county where the person resides or, if the person does not
reside in Oregon, in the circuit court of the county in which the
arrest took place within 30 days after issuance of the final
order of the department.
(b) The court upon receipt of the petition shall set the matter
for hearing upon 10 days' notice to the department and the
petitioner unless hearing is waived by both the department and
the petitioner.
SECTION 68. ORS 813.440, as amended by section 10, chapter 294,
Oregon Laws 2001, is amended to read:
813.440. (1) Notwithstanding ORS 813.410, the Department of
Transportation may provide a hearing to determine the validity of
a suspension under ORS 813.410 only if the time requirements
under ORS 813.410 could not be met because of any of the
following:
(a) The person's physical incapacity, verified by a physician
to the satisfaction of the department to be of a nature that
would prevent the person from making the appropriate request or
attending the hearing.
(b) A death in the immediate family of the person, verified to
the satisfaction of the department.
(c) An error of the department.
(d) The inability of a subpoenaed police officer to appear due
to the officer's illness, vacation or official duty conflicts.
The department shall set forth by rule the conditions that
constitute 'official duty conflicts.' A hearing may not be
rescheduled more than once for reasons described in this
paragraph.
{ + (e) A request for a change of administrative law judge
under section 11, chapter 849, Oregon Laws 1999. + }
{ - (e) - } { + (f) + } Other just cause as defined by the
department by administrative rule.
(2) A hearing held under this section is subject to the same
provisions as a hearing held under ORS 813.410, except that the
department is not required to hold the hearing and make the
determination within the time required by ORS 813.410.
(3) The granting of a hearing under this section shall not
delay the imposition of a suspension under ORS 813.410 within the
time required under ORS 813.410. However, if a person establishes
that the person was deprived by either department error or a
subpoenaed police officer's illness, vacation or official duty
conflicts of an opportunity to appear at a hearing, the
department shall rescind the suspension and shall promptly
schedule a subsequent hearing to determine the validity of the
suspension under ORS 813.410. In other cases under this section,
when the department is unable to hold the hearing within the time
required by ORS 813.410, the department shall rescind any
suspension imposed under ORS 813.410 only if the department
determines, at a hearing held under this section, that the
suspension was not valid as described under ORS 813.410.
(4) The following apply to this section:
(a) The department shall issue a final order within 10 days
after the hearing described in this section.
Enrolled House Bill 2526 (HB 2526-B) Page 59
(b) If the department has rescinded a suspension under
subsection (3) of this section and if the department, at the
hearing described in this section, determines that the suspension
is valid as described under ORS 813.410, the department shall
reinstate the suspension effective five days after the final
order is issued.
(c) Notwithstanding ORS 809.430, no additional notice or order
of suspension need be given.
SECTION 69. ORS 813.450, as amended by section 197, chapter
849, Oregon Laws 1999, is amended to read:
813.450. (1) The petition to the circuit court appealing an
order of the Department of Transportation after a hearing under
ORS 813.410 shall state the nature of the petitioner's interest
and the ground or grounds upon which the petitioner contends the
order should be reversed or remanded.
(2) The court shall conduct the review without a jury. Review
shall be limited to the record of the department's hearing.
(3) Any party to the proceedings before the circuit court may
appeal from the judgment of the court to the Court of Appeals.
(4) Upon review in the circuit court and Court of Appeals, the
court may affirm, reverse or remand the order as follows:
(a) If the court finds that the department 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 department for further action under
a correct interpretation of the provision of law.
(b) The court shall remand the order to the department if it
finds the department's exercise of discretion to be any of the
following:
(A) Outside the range of discretion delegated to the agency by
law.
(B) Inconsistent with a department rule, an officially stated
department position, or a prior department practice, if the
inconsistency is not explained by the department.
(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.
(5) Upon review, the court shall affirm the department's order
unless the court finds a ground for setting aside, modifying or
remanding to the department under a specified provision of this
section.
{ + (6) In any review under this section, the court shall
also review de novo determinations made by an agency that are
subject to section 12 (4), chapter 849, Oregon Laws 1999. + }
SECTION 70. ORS 822.080, as amended by section 200, chapter
849, Oregon Laws 1999, and section 8, chapter 820, Oregon Laws
2001, is amended to read:
822.080. (1) Civil penalties under ORS 822.009 or 822.075 shall
be imposed in the manner provided in ORS 183.090.
(2) An application for a hearing on a civil penalty imposed
under ORS 822.009 or 822.075:
(a) Must be in writing;
(b) Must be postmarked or received by the Department of
Transportation within 20 days from the date of service of the
notice provided for in ORS 183.090;
(c) Must state the name and address of the person requesting a
hearing; and
Enrolled House Bill 2526 (HB 2526-B) Page 60
(d) Must state the action being contested.
(3) Hearings on civil penalties imposed under ORS 822.009 or
822.075 shall be conducted by { - a hearing officer designated
by the department - } { + an administrative law judge assigned
from the Office of Administrative Hearings established under
section 3, chapter 849, Oregon Laws 1999 + }.
(4) The department may, at its option, assign any unpaid civil
penalty to the Department of Revenue for collection. The
Department of Revenue shall deduct reasonable expenses from any
amounts collected.
(5) All civil penalties received under ORS 822.009 or 822.075
shall be paid into the State Treasury each month and credited to
the Department of Transportation Operating Fund established by
ORS 184.642 (1) and (2).
{ +
CONVERSION OF HEARING OFFICER TO + }
{ +
ADMINISTRATIVE LAW JUDGE + }
SECTION 71. ORS 183.310 is amended to read:
183.310. As used in ORS 183.310 to 183.550:
(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, 183.425,
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. + }
{ - (4) - } { + (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.
{ - (5) - } { + (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; and
Enrolled House Bill 2526 (HB 2526-B) Page 61
(B) Agency action under ORS chapter 240 which grants, denies,
modifies, suspends or revokes any right or privilege of an
employee of the state.
(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.
{ - (6) - } { + (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 after the agency has issued its final
order in the proceedings.
{ - (7) - } { + (8) + } 'Person' means any individual,
partnership, corporation, association, governmental subdivision
or public or private organization of any character other than an
agency.
{ - (8) - } { + (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.
{ - (9) - } { + (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.
SECTION 72. ORS 25.125 is amended to read:
25.125. (1) The Department of Human Services may return moneys
to an obligor when the department determines that the obligor has
paid more moneys than are due under a support obligation.
Enrolled House Bill 2526 (HB 2526-B) Page 62
However, when the obligor has an ongoing support obligation, the
department may give the obligor credit for the excess amount paid
and apply the credit to the future support obligation until the
credit is fully used. When the department applies a credit to
offset a future support obligation, the department shall so
notify the obligee. The notice must inform the obligee that, if
the obligee requests, the department will conduct an
administrative review to determine if the record keeping and
accounting related to the calculation of the credit balance is
correct. The department shall conduct the administrative review
within 30 days after receiving the request.
(2) An overpayment in favor of the state is created when the
department, under ORS 25.020, has transmitted moneys received
from an obligor to an obligee or a collection agency, a child
support agency of another state or an agency of this state and:
(a) The amount transmitted is more than the support obligation
requires and the department has returned the excess to the
obligor under subsection (1) of this section;
(b) The department has misapplied moneys received; or
(c) The amount transmitted is attributable in whole or in part
to a tax refund offset collection all or part of which has been
taken back by the Internal Revenue Service or the Department of
Revenue.
(3)(a) The obligee or the agency to whom the moneys were
transmitted owes the amount of the overpayment to the state. The
Department of Human Services:
(A) Shall attempt to recover the overpayment if it is
cost-effective to do so;
(B) Shall notify the obligee or the agency to whom the
overpayment was made that the obligee or agency owes money to the
state and specify the amount of the overpayment to be returned to
the department; and
(C) Shall give the obligee opportunity to object.
(b) If the obligee does not file a timely written objection,
the overpayment amount determined by the department is final and
the provisions of subsection (4) of this section apply. If the
department does not resolve an objection to an obligee's
satisfaction, { - a hearings officer of the department - }
{ + an administrative law judge + } shall hear the objection. An
order by the
{ - hearings officer - } { + administrative law judge + } is
final. An obligee may appeal the decision of { - a hearings
officer - } { + an administrative law judge + } to the circuit
court for a hearing de novo.
(c) Notwithstanding paragraph (a) of this subsection, if an
agency of this or another state owes the overpayment, the agency
shall return the amount of the overpayment to the department
without notice and opportunity to object.
(4) The amount of the overpayment specified in subsection
(3)(a) of this section is a liquidated debt and a delinquent
amount owed to the state. The department may recover the debt by
obtaining from the obligee a voluntary assignment of a portion of
future support payments to be applied to the debt or in any other
way permitted by law.
(5)(a) In addition to the debt created under subsection (2) of
this section, a debt in favor of the state is created when:
(A) The department receives a check for support amounts due
from an obligor or withholder subject to an order to withhold
under this chapter;
Enrolled House Bill 2526 (HB 2526-B) Page 63
(B) The department transmits the amount to the obligee, a child
support agency of another state or an agency of this state; and
(C) The check is dishonored.
(b) When a debt is created under paragraph (a) of this
subsection, the obligor or withholder who presented the check
owes the amount of money specified on the check to the state.
(c) The department shall:
(A) Attempt to recover the debt if it is cost-effective to do
so;
(B) Notify the obligor or withholder who presented the check
that the obligor or withholder owes the money to the state; and
(C) Specify the amount of the debt to be paid to the
department.
(d) The amount of the debt specified in paragraph (c) of this
subsection is a liquidated debt and a delinquent amount owed to
the state. The department may recover the debt in any way
permitted under law.
(6)(a) When a motion has been filed to terminate, vacate or set
aside a support order or to modify a support order to zero, the
department may suspend enforcement of the support order if:
(A) Collection of support would result in a credit balance if
the motion were granted; or
(B) The order is being terminated or modified to zero because
the obligor has physical custody of the child.
(b) When enforcement is to be suspended under this subsection,
the obligee shall be notified and may object on the basis that
the child is not in the physical custody of the obligor or that
the obligee has not consented to the child being in the physical
custody of the obligor. When the obligee files an objection under
this paragraph, the department may not suspend enforcement.
(c) As used in this subsection, 'credit balance' means that
payments have been made in excess of all amounts owed by an
obligor for ongoing and past due child support.
(7) The department shall adopt rules to carry out the
provisions of this section.
SECTION 73. ORS 25.245 is amended to read:
25.245. (1) Notwithstanding any other provision of Oregon law,
a parent who is eligible for and receiving cash payments under
Title IV-A of the Social Security Act, the general assistance
program as provided in ORS chapter 411 or a general assistance
program of another state or tribe, the Oregon Supplemental Income
Program or the federal Supplemental Security Income Program shall
be rebuttably presumed unable to pay child support and a child
support obligation does not accrue unless the presumption is
rebutted.
(2) Each month, the Department of Human Services shall identify
those persons receiving cash payments under the programs listed
in subsection (1) of this section that are administered by the
State of Oregon and provide that information to the
administrator. If benefits are received from programs listed in
subsection (1) of this section that are administered by other
states, tribes or federal agencies, the obligor shall provide the
administrator with written documentation of the benefits. The
Department of Human Services shall adopt rules to implement this
subsection.
(3) The administrator shall refer to the information provided
in subsection (2) of this section prior to establishing any child
support obligation. Within 30 days following identification of
persons under subsection (2) of this section, the entity
responsible for support enforcement services under ORS 25.080
Enrolled House Bill 2526 (HB 2526-B) Page 64
shall provide notice of the presumption to the obligee and
obligor and shall inform all parties to the support order that,
unless a party objects as provided in subsection (4) of this
section, child support shall cease accruing beginning with the
support payment due on or after the date the obligor first begins
receiving the cash payments and continuing through the support
payment due in the last month in which the obligor received the
cash payments. The entity responsible for support enforcement
services shall serve the notice on the obligee in the manner
provided for the service of summons in a civil action or by
certified mail, return receipt requested, and shall serve the
notice on the obligor by first class mail to the obligor's
last-known address. The notice shall specify the month in which
cash payments are first made and shall contain a statement that
the administrator represents the state and that low cost legal
counsel may be available.
(4) A party may object to the presumption by sending an
objection to the entity responsible for support enforcement
services under ORS 25.080 within 20 days after the date of
service of the notice. The objection must describe the resources
of the obligor or other evidence that might rebut the presumption
of inability to pay child support. The entity receiving the
objection shall cause the case to be set for a hearing before a
court or { - a hearing officer - } { + an administrative law
judge + }. The court or
{ - hearing officer - } { + administrative law judge + } may
consider only whether the presumption has been rebutted.
(5) If no objection is made, or if the court or { - hearing
officer - } { + administrative law judge + } finds that the
presumption has not been rebutted, the Department of Justice
shall discontinue billing the obligor for the period of time
described in subsection (3) of this section and no arrearage
shall accrue for the period during which the obligor is not
billed. In addition, the entity providing support enforcement
services shall file with the circuit court in which the support
order or decree has been entered or docketed a copy of the notice
described in subsection (3) of this section or, if an objection
is made and the presumption is not rebutted, a copy of the
{ - hearing officer's - } { + administrative law judge's + }
order.
(6)(a) Within 30 days after the date the obligor ceases
receiving cash payments under a program listed in subsection (1)
of this section, the Department of Justice shall provide notice
to all parties to the support order:
(A) Specifying the last month in which a cash payment was made;
(B) Stating that the payment of those benefits has terminated
and that by operation of law billing and accrual of support
resumes; and
(C) Informing the parties of their rights to request a review
and modification of the support order based on a substantial
change in circumstance or pursuant to ORS 25.287 or any other
provision of law.
(b) The notice shall include a statement that the administrator
represents the state and that low cost legal counsel may be
available.
(c) The entity providing enforcement services shall file a copy
of the notice required by paragraph (a) of this subsection with
the circuit court in which the support order or decree has been
entered or docketed.
Enrolled House Bill 2526 (HB 2526-B) Page 65
(7) Receipt by a child support obligor of cash payments under
any of the programs listed in subsection (1) of this section
shall be sufficient cause for a court or { - hearing
officer - } { + administrative law judge + } to allow a credit
and satisfaction against child support arrearage for months that
the obligor received the cash payments.
(8) The notice and finding of financial responsibility required
by ORS 416.415 shall include notice of the presumption,
nonaccrual and arrearage credit rights provided for in this
section.
(9) The presumption, nonaccrual and arrearage credit rights
created by this section shall apply whether or not child support
enforcement services are being provided under Title IV-D of the
Social Security Act.
(10) Application of the presumption, nonaccrual and arrearage
credit rights created by this section does not constitute a
modification but does not limit the right of any party to seek a
modification of a support order based upon a change of
circumstances or pursuant to ORS 25.287 or any other provision of
law. In determining whether a change in circumstances has
occurred or whether two years have elapsed since entry of a
support order, the court or { - hearing officer - } { +
administrative law judge + } may not consider any action taken
under this section as entry of a support order. The presumption
stated in subsection (1) of this section applies in any
modification proceeding.
SECTION 74. ORS 25.255 is amended to read:
25.255. (1) All child support orders entered pursuant to ORS
chapters 107, 108, 109 and 110 and ORS 416.400 to 416.470 and
419B.400 or 419C.590, and any modifications of those orders,
shall provide, at the election of the obligee, assignee of the
rights to medical support under the Medicaid program or the
assignee of current support rights, that the obligor shall name
the subject child as beneficiary on any health insurance plan
that is available, under the terms of an applicable contract, to
the obligor at reasonable cost. Health insurance is considered
reasonable in cost if it is employment related insurance or other
group health insurance, regardless of service delivery mechanism,
and is available on a group basis or through an employer or union
at a monthly cost, with respect to the coverage of the subject
child, not to exceed the amount of the monthly child support
obligation determined under the formula provided by ORS 25.275
and 25.280. In consideration of the out-of-pocket costs to the
obligor attributable to naming a child on a health insurance
plan, the Administrator of the Division of Child Support, an
administrative
{ - hearings officer - } { + law judge + } or a court shall
reduce the obligor's child support obligation by the amount that
represents the obligee's pro rata share, based upon the obligee's
proportionate share of the combined income of the parents, of the
obligor's out-of-pocket costs of health insurance of the child.
When an obligor does not provide health insurance for a child,
and the obligee elects to provide insurance and incurs
out-of-pocket costs to provide health insurance, the
Administrator of the Division of Child Support, an administrative
{ - hearings officer - } { + law judge + } or a court shall
increase the obligor's child support obligation by an amount that
represents the obligor's pro rata share of the obligee's
out-of-pocket costs of the health insurance attributable to
enrolling the child. Nothing in this section limits the cost of
Enrolled House Bill 2526 (HB 2526-B) Page 66
the insurance which may be provided by the obligee when the
obligor does not provide insurance for the child or children.
However, nothing in this section shall authorize an increase in
the amount of child support to be paid by the obligor in
consideration of the obligee's out-of-pocket costs in an amount
more than would be the obligor's pro rata share if the cost of
the insurance were reasonable in cost as defined by this section.
As used in this section, 'health insurance' includes coverage
under fee for service, health maintenance organizations,
preferred provider organizations and other types of coverage
under which medical services could be provided to the dependent
child of an absent parent. For purposes of this section, the term
'insurer ' includes a group health plan, as defined in section
607 (1) of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1167), a health maintenance organization or an entity
offering a service benefit plan.
(2) If health insurance is not available to an obligor at the
time a child support order is entered, the order shall include a
provision requiring the obligor to provide health insurance in
the future when health insurance becomes available to the
obligor.
(3) In addition to the health insurance coverage required in
subsections (1) and (2) of this section, the order shall also
require the obligor to provide dependent health insurance for the
benefit of the obligee if it is available at no additional cost
to the obligor and in this case the provisions of this section
apply. The remedy provided by this subsection is in addition to
and not exclusive of any other remedy provided by law.
(4) Where the obligor is eligible for family coverage, and upon
application of the obligor, the employer, union or plan
administrator shall enroll the child as a beneficiary in the
health insurance plan and withhold any required premium from the
obligor's income or wages. If the obligor is enrolled, but fails
to make application to obtain coverage for the child, and subject
to the provisions of subsection (5) or (6) of this section, the
employer, union or plan administrator shall enroll the child
under family coverage upon application of the child's other
parent, or the department or the entity responsible for
enforcement under ORS 25.080. The employer shall withhold from
the employee's compensation the employee's share of premiums for
health coverage as necessary and pay this amount to the insurer.
(5) The obligee or entity responsible for support enforcement
under ORS 25.080 may serve a notice of order to provide for
insurance coverage in a form substantially similar to that
prescribed by the Department of Human Services on the obligor's
employer or union or the employer's or union's registered agent,
bookkeeper, accountant, person responsible for payroll or local
office manager. If a medical child support order is required
under section 609 of the Employee Retirement Income Security Act
of 1974, the order shall be provided to the plan administrator.
The notice of order to provide health insurance or a medical
child support order may be served by regular mail or any means
that is calculated to give actual notice. The notice of order or
medical child support order may be issued ex parte either
administratively or judicially and without advance notice to
enforce the health insurance provisions of an order. The notice
of order or a medical child support order may be issued when the
following conditions are met:
Enrolled House Bill 2526 (HB 2526-B) Page 67
(a) An administrative or judicial order, judgment or decree
requires the obligor to provide health insurance for the subject
child; and
(b) The obligor is enrolled in but fails to provide written
proof to the obligee or the entity responsible for support
enforcement that the child has been enrolled or application to
enroll the child has been made.
(6) Notwithstanding the provisions of subsections (4) and (5)
of this section, when an obligor provides coverage and changes
employment, the obligee, the Department of Human Services or the
entity responsible for enforcement under ORS 25.080 shall
transfer notice of order to the new employer. Unless the obligor
contests the notice of order by requesting a modification of the
underlying order, the notice of order operates to enroll the
child in the obligor's health plan if the employer provides
health care coverage. If a medical child support order is
required under section 609 of the Employee Retirement Income
Security Act of 1974, the enforcing entity shall issue a medical
child support order.
(7) The signature of the custodial parent or guardian of the
insured dependent is a valid authorization to the insurer for
purposes of processing an insurance reimbursement payment to the
provider of the health services.
(8) When an order for dependent insurance coverage is in effect
or is being sought, the obligor's employer or union shall release
to the obligee or the entity responsible for support enforcement,
upon request, the name and address of the insurer and any plan
administrator.
(9) When an order for dependent insurance coverage is in effect
or is being sought, the insurer shall release to the obligee, or
to the entity responsible for support enforcement, upon request,
information about the dependent coverage.
(10) The obligor who fails to maintain the health insurance for
the benefit of the child as ordered shall be liable for any
health expenses incurred from the date of the order.
(11) The remedies in this section are not exclusive. Nothing in
this section precludes action by the court to enforce a judicial
or docketed administrative order requiring health insurance for a
child or children by imposition of remedial or punitive sanctions
for contempt or otherwise.
SECTION 75. ORS 25.275 is amended to read:
25.275. (1) The Division of Child Support of the Department of
Justice shall establish by rule a formula for determining child
support awards in any judicial or administrative proceeding. In
establishing the formula, the division shall take into
consideration the following criteria:
(a) All earnings, income and resources of each parent,
including real and personal property;
(b) The earnings history and potential of each parent;
(c) The reasonable necessities of each parent;
(d) The ability of each parent to borrow;
(e) The educational, physical and emotional needs of the child
for whom the support is sought;
(f) The amount of assistance which would be paid to the child
under the full standard of need of the state's IV-A plan;
(g) Preexisting support orders and current dependents;
(h) Any Social Security or Veterans' benefits paid to the
child, or to a representative payee administering the funds for
the child's use and benefit, as a result of a parent's disability
or retirement; and
Enrolled House Bill 2526 (HB 2526-B) Page 68
(i) Other reasonable criteria which the division may find to be
appropriate.
(2) The formula described in subsection (1) of this section
must also comply with the following standards:
(a) The child is entitled to benefit from the income of both
parents to the same extent that the child would have benefited
had the family unit remained intact or if there had been an
intact family unit consisting of both parents and the child.
(b) Both parents should share in the costs of supporting the
child in the same proportion as each parent's income bears to the
combined income of both parents.
(3) The formula described in subsection (1) of this section
must be designed to insure, as a minimum, that the child for whom
support is sought benefits from the income and resources of the
absent parent on an equitable basis in comparison with any other
minor children of the absent parent.
(4) The Administrator of the Division of Child Support, an
administrative { - hearings officer - } { + law judge + } or
a court shall reduce or increase the child support obligation to
be paid by the obligor and determined under the formula described
in subsection (1) of this section in consideration of the costs
of health insurance incurred by the obligor or obligee, as
provided in ORS 25.255.
SECTION 76. ORS 25.768 is amended to read:
25.768. The order of the { - hearings officer - }
{ + administrative law judge + } is final and is subject to
judicial review as provided in ORS 183.482. Any suspension under
ORS 25.750 to 25.783 is not stayed pending judicial review.
SECTION 77. ORS 45.275 is amended to read:
45.275. (1) The court shall appoint a qualified interpreter in
a civil or criminal proceeding, and a hearing officer or the
designee of a hearing officer shall appoint a qualified
interpreter in an adjudicatory proceeding, whenever it is
necessary:
(a) To interpret the proceedings to a non-English-speaking
party;
(b) To interpret the testimony of a non-English-speaking party
or witness; or
(c) To assist the court, agency or hearing officer in
performing the duties and responsibilities of the court, agency
or hearing officer.
(2) No fee shall be charged to any person for the appointment
of an interpreter to interpret testimony of a
non-English-speaking party or witness, or to assist the court,
agency or hearing officer in performing the duties and
responsibilities of the court, agency or hearing officer. No fee
shall be charged to a non-English-speaking party who is unable to
pay for the appointment of an interpreter to interpret the
proceedings to the non-English-speaking party. No fee shall be
charged to any person for the appointment of an interpreter if
appointment is made to determine whether the person is unable to
pay or non-English-speaking for the purposes of this section.
(3) A non-English-speaking party shall be considered unable to
pay for an interpreter for the purposes of this section if:
(a) The party makes a verified statement and provides other
information in writing under oath showing financial inability to
pay for a qualified interpreter, and provides any other
information required by the court or agency concerning the
inability to pay for such an interpreter; and
Enrolled House Bill 2526 (HB 2526-B) Page 69
(b) It appears to the court or agency that the party is in fact
unable to pay for a qualified interpreter.
(4) Fair compensation for the services of an interpreter
appointed under this section shall be paid:
(a) By the county, subject to the approval of the terms of the
contract by the governing body of the county, in a proceeding in
a county or justice court.
(b) By the city, subject to the approval of the terms of the
contract by the governing body of the city, in a proceeding in a
municipal court.
(c) By the state in a proceeding in a circuit court. Amounts
payable by the state shall be from funds available to the court
other than the State Court Indigent Defense Account established
by ORS 151.465, except that fees of an interpreter necessary for
the purpose of communication between appointed counsel and a
client or witness in a criminal case shall be payable from that
account.
(d) By the agency in an adjudicatory proceeding.
(5) Where a party or witness is dissatisfied with the
interpreter selected by the court, the hearing officer or the
designee of the hearing officer, the party or witness may use any
certified interpreter. However, if the substitution of another
interpreter will delay the proceeding, good cause must be shown
for any substitution other than a substitution made by the judge
or hearing officer. Any party may object to use of any
interpreter for good cause. Unless the court, hearing officer or
the designee of the hearing officer has substituted interpreters
for cause, the party using any interpreter other than the
interpreter originally appointed by the court, hearing officer or
the designee of the hearing officer shall bear any additional
costs beyond the amount required to pay the original interpreter.
(6) A court may allow as costs reasonable expenses incurred by
a party in employing the services of an interpreter in civil
proceedings in the manner provided by ORCP 68.
(7) A court, a hearing officer or the designee of a hearing
officer shall require any person serving as an interpreter for
the court or agency to state the person's name on the record and
whether the person is certified under ORS 45.291. If the person
is certified under ORS 45.291, the interpreter need not make the
oath or affirmation required by ORS 40.325 or submit the
interpreter's qualifications on the record. If the person is not
certified under ORS 45.291, the interpreter must make the oath or
affirmation required by ORS 40.325 and submit the interpreter's
qualifications on the record.
(8) For the purposes of this section:
{ + (a) 'Hearing officer' includes an administrative law
judge. + }
{ - (a) - } { + (b) + } 'Non-English-speaking person' means
a person who, by reason of place of birth or culture, speaks a
language other than English and does not speak English with
adequate ability to communicate effectively in the proceedings.
{ - (b) - } { + (c) + } 'Qualified interpreter' means a
person who is readily able to communicate with the
non-English-speaking person and who can orally transfer the
meaning of statements to and from English and the language spoken
by the non-English-speaking person. A qualified interpreter must
be able to interpret in a manner that conserves the meaning,
tone, level, style and register of the original statement,
without additions or omissions. ' Qualified interpreter' does
Enrolled House Bill 2526 (HB 2526-B) Page 70
not include any person who is unable to interpret the dialect,
slang or specialized vocabulary used by the party or witness.
SECTION 78. ORS 45.275, as amended by section 66, chapter 962,
Oregon Laws 2001, is amended to read:
45.275. (1) The court shall appoint a qualified interpreter in
a civil or criminal proceeding, and a hearing officer or the
designee of a hearing officer shall appoint a qualified
interpreter in an adjudicatory proceeding, whenever it is
necessary:
(a) To interpret the proceedings to a non-English-speaking
party;
(b) To interpret the testimony of a non-English-speaking party
or witness; or
(c) To assist the court, agency or hearing officer in
performing the duties and responsibilities of the court, agency
or hearing officer.
(2) No fee shall be charged to any person for the appointment
of an interpreter to interpret testimony of a
non-English-speaking party or witness, or to assist the court,
agency or hearing officer in performing the duties and
responsibilities of the court, agency or hearing officer. No fee
shall be charged to a non-English-speaking party who is unable to
pay for the appointment of an interpreter to interpret the
proceedings to the non-English-speaking party. No fee shall be
charged to any person for the appointment of an interpreter if
appointment is made to determine whether the person is unable to
pay or non-English-speaking for the purposes of this section.
(3) A non-English-speaking party shall be considered unable to
pay for an interpreter for the purposes of this section if:
(a) The party makes a verified statement and provides other
information in writing under oath showing financial inability to
pay for a qualified interpreter, and provides any other
information required by the court or agency concerning the
inability to pay for such an interpreter; and
(b) It appears to the court or agency that the party is in fact
unable to pay for a qualified interpreter.
(4) Fair compensation for the services of an interpreter
appointed under this section shall be paid:
(a) By the county, subject to the approval of the terms of the
contract by the governing body of the county, in a proceeding in
a county or justice court.
(b) By the city, subject to the approval of the terms of the
contract by the governing body of the city, in a proceeding in a
municipal court.
(c) By the state in a proceeding in a circuit court. Amounts
payable by the state shall be from funds available to the court
other than the Public Defense Services Account established by ORS
151.225, except that fees of an interpreter necessary for the
purpose of communication between appointed counsel and a client
or witness in a criminal case shall be payable from that account.
(d) By the agency in an adjudicatory proceeding.
(5) Where a party or witness is dissatisfied with the
interpreter selected by the court, the hearing officer or the
designee of the hearing officer, the party or witness may use any
certified interpreter. However, if the substitution of another
interpreter will delay the proceeding, good cause must be shown
for any substitution other than a substitution made by the judge
or hearing officer. Any party may object to use of any
interpreter for good cause. Unless the court, hearing officer or
the designee of the hearing officer has substituted interpreters
Enrolled House Bill 2526 (HB 2526-B) Page 71
for cause, the party using any interpreter other than the
interpreter originally appointed by the court, hearing officer or
the designee of the hearing officer shall bear any additional
costs beyond the amount required to pay the original interpreter.
(6) A court may allow as costs reasonable expenses incurred by
a party in employing the services of an interpreter in civil
proceedings in the manner provided by ORCP 68.
(7) A court, a hearing officer or the designee of a hearing
officer shall require any person serving as an interpreter for
the court or agency to state the person's name on the record and
whether the person is certified under ORS 45.291. If the person
is certified under ORS 45.291, the interpreter need not make the
oath or affirmation required by ORS 40.325 or submit the
interpreter's qualifications on the record. If the person is not
certified under ORS 45.291, the interpreter must make the oath or
affirmation required by ORS 40.325 and submit the interpreter's
qualifications on the record.
(8) For the purposes of this section:
{ + (a) 'Hearing officer' includes an administrative law
judge. + }
{ - (a) - } { + (b) + } 'Non-English-speaking person' means
a person who, by reason of place of birth or culture, speaks a
language other than English and does not speak English with
adequate ability to communicate effectively in the proceedings.
{ - (b) - } { + (c) + } 'Qualified interpreter' means a
person who is readily able to communicate with the
non-English-speaking person and who can orally transfer the
meaning of statements to and from English and the language spoken
by the non-English-speaking person. A qualified interpreter must
be able to interpret in a manner that conserves the meaning,
tone, level, style and register of the original statement,
without additions or omissions. ' Qualified interpreter' does
not include any person who is unable to interpret the dialect,
slang or specialized vocabulary used by the party or witness.
SECTION 79. ORS 45.285 is amended to read:
45.285. (1) In any civil action, adjudicatory proceeding or
criminal proceeding, including a court-ordered deposition if no
other person is responsible for providing an interpreter, in
which a disabled person is a party or witness, the court, hearing
officer or the designee of the hearing officer shall appoint a
qualified interpreter and make available appropriate assistive
communication devices whenever it is necessary to interpret the
proceedings to the disabled person, or to interpret the testimony
of the disabled person.
(2) No fee shall be charged to the disabled person for the
appointment of an interpreter or use of an assistive
communication device under this section. No fee shall be charged
to any person for the appointment of an interpreter or the use of
an assistive communication device if appointment or use is made
to determine whether the person is disabled for the purposes of
this section.
(3) Fair compensation for the services of an interpreter or the
cost of an assistive communication device under this section
shall be paid:
(a) By the county, subject to the approval of the terms of the
contract by the governing body of the county, in a proceeding in
a county or justice court.
(b) By the city, subject to the approval of the terms of the
contract by the governing body of the city, in a proceeding in a
municipal court.
Enrolled House Bill 2526 (HB 2526-B) Page 72
(c) By the state in a proceeding in a circuit court. Amounts
payable by the state shall be from funds available to the court
other than the State Court Indigent Defense Account established
by ORS 151.465, except that fees of an interpreter necessary for
the purpose of communication between appointed counsel and a
client or witness in a criminal case shall be payable from that
account.
(d) By the agency in an adjudicatory proceeding.
(4) For the purposes of this section:
(a) 'Assistive communication device' means any equipment
designed to facilitate communication by a disabled person.
(b) 'Disabled person' means a person who cannot readily
understand the proceedings because of deafness or a physical
hearing impairment, or cannot communicate in the proceedings
because of a physical speaking impairment.
{ + (c) 'Hearing officer' includes an administrative law
judge. + }
{ - (c) - } { + (d) + } 'Qualified interpreter' means a
person who is readily able to communicate with the disabled
person, interpret the proceedings and accurately repeat and
interpret the statements of the disabled person to the court.
SECTION 80. ORS 45.285, as amended by section 68, chapter 962,
Oregon Laws 2001, is amended to read:
45.285. (1) In any civil action, adjudicatory proceeding or
criminal proceeding, including a court-ordered deposition if no
other person is responsible for providing an interpreter, in
which a disabled person is a party or witness, the court, hearing
officer or the designee of the hearing officer shall appoint a
qualified interpreter and make available appropriate assistive
communication devices whenever it is necessary to interpret the
proceedings to the disabled person, or to interpret the testimony
of the disabled person.
(2) No fee shall be charged to the disabled person for the
appointment of an interpreter or use of an assistive
communication device under this section. No fee shall be charged
to any person for the appointment of an interpreter or the use of
an assistive communication device if appointment or use is made
to determine whether the person is disabled for the purposes of
this section.
(3) Fair compensation for the services of an interpreter or the
cost of an assistive communication device under this section
shall be paid:
(a) By the county, subject to the approval of the terms of the
contract by the governing body of the county, in a proceeding in
a county or justice court.
(b) By the city, subject to the approval of the terms of the
contract by the governing body of the city, in a proceeding in a
municipal court.
(c) By the state in a proceeding in a circuit court. Amounts
payable by the state shall be from funds available to the court
other than the Public Defense Services Account established by ORS
151.225, except that fees of an interpreter necessary for the
purpose of communication between appointed counsel and a client
or witness in a criminal case shall be payable from that account.
(d) By the agency in an adjudicatory proceeding.
(4) For the purposes of this section:
(a) 'Assistive communication device' means any equipment
designed to facilitate communication by a disabled person.
(b) 'Disabled person' means a person who cannot readily
understand the proceedings because of deafness or a physical
Enrolled House Bill 2526 (HB 2526-B) Page 73
hearing impairment, or cannot communicate in the proceedings
because of a physical speaking impairment.
{ + (c) 'Hearing officer' includes an administrative law
judge. + }
{ - (c) - } { + (d) + } 'Qualified interpreter' means a
person who is readily able to communicate with the disabled
person, interpret the proceedings and accurately repeat and
interpret the statements of the disabled person to the court.
SECTION 81. ORS 45.288 is amended to read:
45.288. (1) Except as provided by this section, whenever a
court is required to appoint an interpreter for any person in a
proceeding before the court, or whenever a hearing officer is
required to appoint an interpreter in an adjudicatory proceeding,
the court, hearing officer or the designee of the hearing officer
shall appoint a qualified interpreter who has been certified
under ORS 45.291. If no certified interpreter is available, able
or willing to serve, the court, hearing officer or the designee
of the hearing officer shall appoint a qualified interpreter.
Upon request of a party or witness, the court, hearing officer or
designee of the hearing officer, in the discretion of the court,
hearing officer or the designee of the hearing officer, may
appoint a qualified interpreter to act as an interpreter in lieu
of a certified interpreter in any case or adjudicatory
proceeding.
(2) The requirements of this section apply to appointments of
interpreters for disabled persons, as defined in ORS 45.285, and
for non-English-speaking persons, as defined in ORS 45.275.
(3) The court, hearing officer or the designee of the hearing
officer may not appoint any person under ORS 45.272 to 45.297 or
132.090 if:
(a) The person has a conflict of interest with any of the
parties or witnesses in the proceeding;
(b) The person is unable to understand the judge, hearing
officer, party or witness, or cannot be understood by the judge,
hearing officer, party or witness; or
(c) The person is unable to work cooperatively with the judge
of the court, the hearing officer, the person in need of an
interpreter or the counsel for that person.
(4) The Supreme Court shall adopt a code of professional
responsibility for interpreters. The code is binding on all
interpreters who provide interpreter services in the courts or in
adjudicatory proceedings before agencies.
(5) For the purposes of this section { - , - } { + :
(a) 'Hearing officer' includes an administrative law judge.
(b) + } 'Qualified interpreter' means a person who meets the
requirements of ORS 45.285 for a disabled person, or a person who
meets the requirements of ORS 45.275 for a non-English-speaking
person.
SECTION 82. ORS 101.030 is amended to read:
101.030. (1) All providers shall register with the Department
of Human Services before the provider:
(a) Enters into a residency agreement with a nonresident;
(b) Extends the terms of a resident's existing residency
agreement; or
(c) Solicits either a resident or nonresident to pay an
application fee or execute a residency agreement.
(2) The provider shall apply for registration with the
department on forms prescribed by the department. The application
shall include a disclosure statement as described in ORS 101.050.
Enrolled House Bill 2526 (HB 2526-B) Page 74
(3) Within 10 business days after receipt of the application
for registration from a new continuing care retirement community,
the department shall issue a notice of filing to the provider
applicant. Within 60 days of the notice of filing, the department
shall enter an order registering the provider or rejecting the
registration. If no order of rejection is entered within 60 days
from the date of notice of filing, the provider shall be
considered registered unless the provider has consented in
writing to an extension of time. If no order of rejection is
entered within the time period as so extended, the provider shall
be considered registered.
(4) If the department determines that the requirements of ORS
101.050, 101.090 and 101.130 have been met, it shall enter an
order registering the provider. If the department determines that
any of the requirements of ORS 101.050 and 101.130 have not been
met, the department shall notify the applicant that the
application for registration must be corrected within 30 days in
such particulars as are designated by the department. If the
requirements are not met within the time allowed, the department
may enter an order rejecting the registration. The order shall
include the findings of fact upon which the order is based and
which shall not become effective until 20 days after the end of
the foregoing 30-day period. During the 20-day period, the
applicant may petition for reconsideration and shall be entitled
to a hearing. An order of rejection shall not take effect, in any
event, until such time as the hearing, once requested, has been
given to the applicant and a decision is rendered by the
{ - hearings officer - } { + administrative law judge + }
which sustains the department's decision to reject the
registration.
SECTION 83. ORS 107.106 is amended to read:
107.106. (1) An order or judgment providing for the custody,
parenting time, visitation or support of a child under ORS
chapter 25, 107, 108, 109 or 110 or ORS 419B.400 or 419C.590
shall include:
(a) Provisions addressing the issues of:
(A) Payment of uninsured medical expenses of the child;
(B) Maintenance of insurance or other security for support; and
(C) Maintenance of health insurance for the child.
(b) A statement in substantially the following form:
_________________________________________________________________
The terms of child support and parenting time (visitation) are
designed for the child's benefit and not the parents' benefit.
You must pay support even if you are not receiving visitation.
You must comply with visitation orders even if you are not
receiving child support.
Violation of child support orders and visitation orders is
punishable by fine, imprisonment or other penalties.
Publicly funded help is available to establish, enforce and
modify child support orders. Paternity establishment services are
also available. Contact your local district attorney, domestic
relations court clerk or the Department of Human Services at
(503) 378-5567 for information.
Publicly funded help may be available to establish, enforce and
modify visitation orders. Forms are available to enforce
visitation orders. Contact the domestic relations court clerk or
civil court clerk for information.
_________________________________________________________________
Enrolled House Bill 2526 (HB 2526-B) Page 75
(2) The court or { - hearings officer - }
{ + administrative law judge + } shall ensure the creation and
filing of an order or judgment that complies with this section.
(3) This section does not apply to an action undertaken by the
Division of Child Support of the Department of Justice or a
district attorney under ORS 25.080.
SECTION 84. ORS 107.108 is amended to read:
107.108. (1) In addition to any other authority of the court,
the court may enter an order against either parent, or both of
them, to provide for the support or maintenance of a child
attending school:
(a) After the commencement of a suit for annulment or
dissolution of a marriage or for separation from bed and board
and before the decree therein;
(b) In a decree of annulment or dissolution of a marriage or of
separation from bed and board; and
(c) During the pendency of an appeal taken from all or part of
a decree rendered in pursuance of ORS 107.005 to 107.085, 107.095
to 107.174, 107.405, 107.425, 107.445 to 107.520, 107.540,
107.610 or this section.
(2) An order providing for temporary support pursuant to
subsection (1)(c) of this section may be modified at any time by
the court making the decree appealed from, shall provide that the
support money be paid in monthly installments, and shall further
provide that it is to be in effect only during the pendency of
the appeal. No appeal lies from any such temporary order.
(3) If the court provides for the support and maintenance of a
child attending school pursuant to this section, the child is a
party for purposes of matters related to that provision.
(4) When the court orders support under this section or the
administrator or { - a hearings officer - } { + an
administrative law judge + } orders support for a child attending
school under ORS 416.400 to 416.470, the court, administrator or
{ - hearings officer - } { + administrative law judge + } shall
order that the support be distributed to the child unless good
cause is found for the distribution of the payment to be made in
some other manner. When there are multiple children for whom
support is ordered, the amount paid directly to a child under
this subsection is a prorated share based on the number of
children for whom support is ordered unless otherwise ordered by
the court, administrator or hearings officer. The Department of
Human Services shall adopt rules to define good cause and
circumstances under which the administrator or hearings officer
may allocate support by other than a prorated share and to
determine how support is to be allocated in those circumstances.
(5) A child for whom support has been ordered under this
section:
(a) Must maintain the equivalent of a C average or better.
(b) Shall notify a parent paying support when the child ceases
to be a child attending school.
(c) Shall submit to the Department of Human Services and the
parent paying support, on a form developed by the department, all
information necessary to establish eligibility to receive support
under this section, including grades earned and the courses in
which the child is enrolled. The child shall submit the
information required by this paragraph within the first month of
each term or semester.
(6) If the child fails to comply with any of the requirements
imposed on the child by this section and upon written notice from
the obligor, the distribution of the support directly to the
Enrolled House Bill 2526 (HB 2526-B) Page 76
child ceases and may not be reinstated unless the parent paying
support elects to continue to pay the support, in spite of the
child's failure to comply with the requirements of this section,
and notifies the Department of Human Services of the election in
writing. If the underlying support order is for the support of
more than one child, the parent shall pay the amount previously
paid directly to the child to the recipient of the rest of the
support until such time as the support order is modified. A
child's failure to comply with the requirements imposed by this
section is a substantial change of circumstances for purposes of
modification of a support order.
(7) Orders entered into prior to October 4, 1997, may be
modified to include the provisions of subsections (4) to (6) of
this section. However, the fact that an order entered, or
agreement entered into, prior to October 4, 1997, does not
contain any of the provisions of subsections (4) to (6) of this
section does not constitute a substantial change of circumstances
for purposes of modifying a child support order.
(8) As used in this section, 'child attending school' means a
child of the parties who is unmarried, is 18 years of age or
older and under 21 years of age and is a student regularly
attending school, community college, college or university, or
regularly attending a course of professional or technical
training designed to fit the child for gainful employment. A
child enrolled in an educational course load of less than
one-half that determined by the educational facility to
constitute 'full-time ' enrollment is not a 'child attending
school. '
SECTION 85. ORS 110.304 is amended to read:
110.304. The tribunals of this state are the circuit court, the
administrator, as defined in ORS 25.010, the Department of
Justice or { - a hearings officer - } { + an administrative
law judge + } of the Employment Department, as appropriate.
SECTION 86. ORS 179.640 is amended to read:
179.640. (1)(a) Both the Department of Human Services and the
Department of Corrections shall establish rules for determining
ability to pay for persons in their respective institutions. The
rules adopted by each agency shall require, in addition to other
relevant factors, consideration of the personal estate, the
person's need for funds for personal support after release, and
the availability of third-party benefits such as, but not limited
to, Medicare or private insurance. Each agency may also consider
the probable length of stay at the state institution. Nothing in
this section requires the Department of Corrections to
investigate a person's ability to pay or to issue an
ability-to-pay order.
(b) When adopting rules under paragraph (a) of this subsection,
the Department of Corrections shall consider the person's needs
for funds to pay for the support of the person's children and to
pay any monetary obligations imposed on the person as a result of
the person's conviction.
(2) In determining a person's ability to pay, neither agency
may consider as part of the personal estate of the person or the
decedent's estate:
(a) Any assets received by or owing to the person and the
personal estate of the person, or the decedent's estate, as
compensation from the state for injury, death or, if the
collection is being made by the Department of Corrections, the
false imprisonment of the person that occurred when the person
was in a state institution listed in ORS 179.321 and for which
Enrolled House Bill 2526 (HB 2526-B) Page 77
the state admits liability or is found liable through
adjudication; and
(b) Any real or personal property that the person or an
authorized representative of the person can demonstrate was
purchased solely with assets referred to in paragraph (a) of this
subsection or partially with such assets, to the extent such
assets were used in the purchase.
(3) A person and the authorized representative of the person,
if any, shall provide all financial information requested by the
agency that is necessary to determine the person's ability to
pay. To determine ability to pay, the agency may use any
information available to the agency, including information
provided by the Department of Revenue from personal income tax
returns pursuant to ORS 314.840, and elderly rental assistance
claims. Upon request, the Department of Revenue shall release
copies of tax returns to the agency. When the person or the
person's authorized representative fails to provide evidence to
demonstrate an inability to pay full cost of care, the agency may
determine the person has the ability to pay the full cost of
care.
(4) The agency shall provide actual notice to the person and
any authorized representative, if known to the agency, of its
determination by issuing an ability-to-pay order. The order shall
state the person's full liability and the person's determined
ability to pay. Actual notice means receipt by the person and the
authorized representative of notice. The notice shall include a
copy of the ability-to-pay order, a description of the person's
appeal rights and the date upon which appeal rights terminate and
state the address where a request for hearing may be mailed or
delivered. At any time, the agency may reissue an ability-to-pay
order to notify an authorized representative as provided by ORS
179.653 (4).
(5) At any time during the person's stay at the state
institution or within 36 months from the date the person is
released, if the agency receives new financial information that
shows a change in the person's financial circumstances, the
agency shall consider the changed circumstances and issue a new
ability-to-pay order.
(6) Orders issued after the person is released may not require
the person to make payments toward the cost of care for more than
36 consecutive months following release. However, the agency may
collect beyond the 36-month period any payments that became due
but were not paid within the 36 months following release. Any
remaining balance of full cost of care shall be collected as
provided in ORS 179.740.
(7) Notwithstanding ORS 183.315 (5), if a person or authorized
representative disagrees with any ability-to-pay order issued
pursuant to this section, the person or authorized representative
may request a contested case hearing. To the extent practical,
the hearing will be held at a location convenient to the person
or the authorized representative. The request must be postmarked
within 60 days from the date of the mailing of the ability-to-pay
order. If the person or the authorized representative makes a
timely request for a contested case hearing, the hearing and any
appeal of the final hearing order shall be governed by ORS
183.413 to 183.497. If the person or the authorized
representative fails to make a timely request for a contested
case hearing, the ability-to-pay order shall be final and not
subject to judicial review, except as subsequently modified by
the agency as provided in subsection (5) of this section.
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(8) On appeal, regardless of other information presented,
payment of the full cost of care may be ordered if the person or
the authorized representative refuses to produce financial
information that the Hearings Officer { + or administrative law
judge + } determines is relevant and must be produced.
SECTION 87. ORS 358.495 is amended to read:
358.495. (1) Immediately following approval or disapproval of
an application under ORS 358.490, the State Historic Preservation
Officer shall notify the county assessor, the governing body and
the applicant which shall in no event be later than September 15
of the tax year for which classification and special assessment
are first desired. In no event later than September 15 of the
year for which classification and special assessment are desired,
the State Historic Preservation Officer shall cause a copy of the
preservation plan approved under ORS 358.490 to be delivered or
mailed to the county assessor and the governing body. An
application not denied on or before September 15 shall be deemed
approved, and the property that is the subject of the application
shall be considered to be historic property that qualifies under
ORS 358.480 to 358.545.
(2) If the State Historic Preservation Officer determines that
the historic property qualifies under ORS 358.480 to 358.545, the
State Historic Preservation Officer shall certify that fact in
writing and shall file a copy of the certificate with the county
assessor and the governing body. The certificate shall state the
facts upon which the approval was based and list any condition on
which approval is based. The county assessor, as to any historic
property, shall assess on the basis provided in ORS 358.505, and
each year the historic property is classified and so assessed
shall also enter on the assessment and tax roll that the property
is being specially assessed as historic property and is subject
to potential additional taxes as provided in ORS 358.525 by
adding the notation 'historic property (potential additional
tax). '
(3) If the State Historic Preservation Officer determines that
the property does not qualify for classification and assessment
under ORS 358.480 to 358.545, the State Historic Preservation
Officer shall give written notice of the denial to the applicant.
The notice shall state the reasons for the denial.
(4)(a) Any owner, governing body or county assessor affected by
a determination of the State Historic Preservation Officer made
under ORS 358.480 to 358.545 may request a contested case hearing
according to the provisions of ORS 183.310 to 183.550.
(b) After a contested case hearing has been held, the
{ - hearing officer - } { + administrative law judge + }
shall present the proposed order to the Historic Assessment
Review Committee. The review committee shall determine the final
order in the case.
SECTION 88. ORS 416.425 is amended to read:
416.425. (1) Any time support enforcement services are being
provided under ORS 25.080, the obligated parent, the obligee, the
party holding the support rights or the administrator may move
for the existing order to be modified under this section. The
motion shall be in writing in a form prescribed by the
administrator, shall set out the reasons for modification and
shall state the telephone number and address of the moving party.
The motion shall be served upon the obligated parent, the
obligee, the party holding the support rights and the
administrator, as appropriate. The obligor shall be served in
the same manner as provided for service of the notice and finding
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of financial responsibility under ORS 416.415 (1). The obligee
shall be served in accordance with ORS 25.085. The parties
against whom the motion is made shall have 30 days to resolve the
matter by stipulated agreement or to serve the moving party by
regular mail with a written response setting forth any objections
to the motion and a request for hearing. The hearing shall be
conducted pursuant to ORS 416.427.
(2) When the moving party is other than the administrator and
no objections and request for hearing have been served within 30
days, the moving party may submit a true copy of the motion to
the
{ - hearings officer - } { + administrative law judge + } as
provided in ORS 416.427, except the default shall not be
construed to be a contested case as defined in ORS 183.310 to
183.550. Upon proof of service, the { - hearings officer - }
{ + administrative law judge + } shall issue an order granting
the relief sought.
(3) When the moving party is the administrator and no
objections and request for hearing have been served within 30
days, the administrator may enter an order granting the relief
sought.
(4) A motion for modification made pursuant to this section
shall not stay the administrator from enforcing and collecting
upon the existing order unless so ordered by the court in which
the order is docketed.
(5) Except as otherwise provided by ORS 416.400 to 416.470, the
only support payments which may be modified are the monthly
future support payments.
(6) The party requesting modification shall have the burden of
showing a substantial change of circumstances or that a
modification is appropriate under the provisions of ORS 25.287.
(7) An administrative order modifying a court order is not
effective until the administrative order is reviewed and approved
by the court that entered the court order. The court shall make a
written finding on the record that the administrative order
complies with the formula established by ORS chapter 25. The
court may approve the administrative order at any time after the
order is issued. If upon review the court finds that the
administrative order should not be approved, the court shall set
the matter for hearing de novo.
(8) The obligee is a party to all proceedings under this
section.
(9) An order entered under this section that modifies a support
order because of the incarceration of the obligor is effective
only during the period of the obligor's incarceration and for 60
days after the obligor's release from incarceration. The
previous support order is reinstated by operation of law on the
61st day after the obligor's release from incarceration. An order
that modifies a support order because of the obligor's
incarceration must contain a notice that the previous order will
be reinstated on the 61st day after the obligor's release from
incarceration.
SECTION 89. ORS 416.440 is amended to read:
416.440. (1) The documents required to be filed for purposes of
subsection (2) of this section include all the following:
(a) A true copy of any order entered, filed or registered by
the administrator or { - hearings officer - }
{ + administrative law judge + } pursuant to ORS 416.400 to
416.470 or ORS chapter 110.
(b) A true copy of the return of service, if applicable.
Enrolled House Bill 2526 (HB 2526-B) Page 80
(c) A separate statement containing the information required to
be contained in a judgment under ORCP 70 A(2)(a).
(2) The documents described under subsection (1) of this
section shall be filed in the office of the clerk of the circuit
court in the county in which either the parent or the dependent
child resides or in the county where the court order was entered
if the administrative order is an order modifying a court order.
Upon receipt of the documents, the clerk shall docket the order
in the circuit court judgment docket.
(3) Upon docketing under subsection (2) of this section, the
order shall have all the force, effect and attributes of a
docketed order or decree of the circuit court, including but not
limited to:
(a) Lien effect;
(b) Ability to be renewed pursuant to ORS 18.360; and
(c) Ability to be enforced by supplementary proceedings,
contempt of court proceedings, writs of execution and writs of
garnishment.
(4) Notwithstanding subsection (3) of this section, an
administrative order modifying a court order shall not become
effective until reviewed and approved by the court under ORS
416.425 (7).
(5) Notwithstanding subsections (2) and (3) of this section,
the docketing of an order entered by the administrator or
{ - hearings officer - } { + administrative law judge + }
does not preclude any subsequent proceeding or remedy available
under ORS 416.400 to 416.470.
(6) A court or administrative order of another state may be
filed, or if appropriate, registered, pursuant to this section
for the purposes of ORS chapter 110. Notwithstanding any other
provision of this chapter, an order of another state registered
pursuant to ORS 110.405, 110.408 and 110.411 may not be modified
unless the requirements of ORS 110.432 are met.
SECTION 90. ORS 416.455 is amended to read:
416.455. (1) In any individual case, commencing with the
payment of public assistance by the department, with the
application for enforcement services under ORS 25.080 by an
individual not receiving public assistance or upon receipt of a
written request for enforcement of a support obligation from the
state agency of another state responsible for administering the
federal child support enforcement program, the administrator may
take action under ORS 416.400 to 416.470. The administrator and,
as appropriate, the { - hearings officer - }
{ + administrative law judge + }, may establish, modify and
terminate support orders, require health care coverage for
dependent children, establish paternity and collect child
support.
(2) The administrator may make such rules and take such action
as may be necessary or desirable for carrying out ORS 416.400 to
416.470.
SECTION 91. ORS 442.015 is amended to read:
442.015. As used in ORS chapter 441 and this chapter, unless
the context requires otherwise:
(1) 'Acquire' or 'acquisition' refers to obtaining equipment,
supplies, components or facilities by any means, including
purchase, capital or operating lease, rental or donation, with
intention of using such equipment, supplies, components or
facilities to provide health services in Oregon. When equipment
or other materials are obtained outside of this state,
acquisition is considered to occur when the equipment or other
Enrolled House Bill 2526 (HB 2526-B) Page 81
materials begin to be used in Oregon for the provision of health
services or when such services are offered for use in Oregon.
(2) 'Adjusted admission' means the sum of all inpatient
admissions divided by the ratio of inpatient revenues to total
patient revenues.
(3) 'Affected persons' has the same meaning as given to '
party' in ORS 183.310 { - (6) - } .
(4) 'Ambulatory surgical center' means a facility that performs
outpatient surgery not routinely or customarily performed in a
physician's or dentist's office, and is able to meet health
facility licensure requirements.
(5) 'Audited actual experience' means data contained within
financial statements examined by an independent, certified public
accountant in accordance with generally accepted auditing
standards.
(6) 'Budget' means the projections by the hospital for a
specified future time period of expenditures and revenues with
supporting statistical indicators.
(7) 'Case mix' means a calculated index for each hospital,
based on financial accounting and case mix data collection as set
forth in ORS 442.425, reflecting the relative costliness of that
hospital's mix of cases compared to a state or national mix of
cases.
(8) 'Council' means the Oregon Health Council.
(9) 'Department' means the Department of Human Services of the
State of Oregon.
(10) 'Develop' means to undertake those activities which on
their completion will result in the offer of a new institutional
health service or the incurring of a financial obligation, as
defined under applicable state law, in relation to the offering
of such a health service.
(11) 'Director' means the Director of Human Services.
(12) 'Expenditure' or 'capital expenditure' means the actual
expenditure, an obligation to an expenditure, lease or similar
arrangement in lieu of an expenditure, and the reasonable value
of a donation or grant in lieu of an expenditure but not
including any interest thereon.
(13) 'Freestanding birthing center' means a facility licensed
for the primary purpose of performing low risk deliveries.
(14) 'Governmental unit' means the state, or any county,
municipality or other political subdivision, or any related
department, division, board or other agency.
(15) 'Gross revenue' means the sum of daily hospital service
charges, ambulatory service charges, ancillary service charges
and other operating revenue. 'Gross revenue' does not include
contributions, donations, legacies or bequests made to a hospital
without restriction by the donors.
(16)(a) 'Health care facility' means a hospital, a long term
care facility, an ambulatory surgical center, a freestanding
birthing center or an outpatient renal dialysis facility.
(b) 'Health care facility' does not mean:
(A) An establishment furnishing residential care or treatment
not meeting federal intermediate care standards, not following a
primarily medical model of treatment, prohibited from admitting
persons requiring 24-hour nursing care and licensed or approved
under the rules of the Department of Human Services or the
Department of Corrections; or
(B) An establishment furnishing primarily domiciliary care.
Enrolled House Bill 2526 (HB 2526-B) Page 82
(17) 'Health maintenance organization' or 'HMO' means a public
organization or a private organization organized under the laws
of any state which:
(a) Is a qualified HMO under section 1310 (d) of the U.S.
Public Health Services Act; or
(b)(A) Provides or otherwise makes available to enrolled
participants health care services, including at least the
following basic health care services: Usual physician services,
hospitalization, laboratory, X-ray, emergency and preventive
services, and out-of-area coverage;
(B) Is compensated, except for copayments, for the provision of
the basic health care services listed in subparagraph (A) of this
paragraph to enrolled participants on a predetermined periodic
rate basis; and
(C) Provides physicians' services primarily directly through
physicians who are either employees or partners of such
organization, or through arrangements with individual physicians
or one or more groups of physicians organized on a group practice
or individual practice basis.
(18) 'Health services' means clinically related diagnostic,
treatment or rehabilitative services, and includes alcohol, drug
or controlled substance abuse and mental health services that may
be provided either directly or indirectly on an inpatient or
ambulatory patient basis.
(19) 'Hospital' means a facility with an organized medical
staff, with permanent facilities that include inpatient beds and
with medical services, including physician services and
continuous nursing services under the supervision of registered
nurses, to provide diagnosis and medical or surgical treatment
primarily for but not limited to acutely ill patients and
accident victims, to provide treatment for the mentally ill or to
provide treatment in special inpatient care facilities.
(20) 'Institutional health services' means health services
provided in or through health care facilities and includes the
entities in or through which such services are provided.
(21) 'Intermediate care facility' means a facility that
provides, on a regular basis, health-related care and services to
individuals who do not require the degree of care and treatment
that a hospital or skilled nursing facility is designed to
provide, but who because of their mental or physical condition
require care and services above the level of room and board that
can be made available to them only through institutional
facilities.
(22) 'Long term care facility' means a facility with permanent
facilities that include inpatient beds, providing medical
services, including nursing services but excluding surgical
procedures except as may be permitted by the rules of the
director, to provide treatment for two or more unrelated
patients. ' Long term care facility' includes skilled nursing
facilities and intermediate care facilities but may not be
construed to include facilities licensed and operated pursuant to
ORS 443.400 to 443.455.
(23) 'Major medical equipment' means medical equipment that is
used to provide medical and other health services and that costs
more than $1 million. 'Major medical equipment' does not include
medical equipment acquired by or on behalf of a clinical
laboratory to provide clinical laboratory services, if the
clinical laboratory is independent of a physician's office and a
hospital and has been determined under Title XVIII of the Social
Enrolled House Bill 2526 (HB 2526-B) Page 83
Security Act to meet the requirements of paragraphs (10) and (11)
of section 1861(s) of that Act.
(24) 'Medically indigent' means a person who has insufficient
resources or assets to pay for needed medical care without
utilizing resources required to meet basic needs for shelter,
food and clothing.
(25) 'Net revenue' means gross revenue minus deductions from
revenue.
(26) 'New hospital' means a facility that did not offer
hospital services on a regular basis within its service area
within the prior 12-month period and is initiating or proposing
to initiate such services. 'New hospital' also includes any
replacement of an existing hospital that involves a substantial
increase or change in the services offered.
(27) 'New skilled nursing or intermediate care service or
facility' means a service or facility that did not offer long
term care services on a regular basis by or through the facility
within the prior 12-month period and is initiating or proposing
to initiate such services. A 'new skilled nursing or intermediate
care service or facility' also includes the rebuilding of a long
term care facility, the relocation of buildings which are a part
of a long term care facility, the relocation of long term care
beds from one facility to another or an increase in the number of
beds of more than 10 or 10 percent of the bed capacity, whichever
is the lesser, within a two-year period.
(28) 'Offer' means that the health care facility holds itself
out as capable of providing, or as having the means for the
provision of, specified health services.
(29) 'Operating expenses' means the sum of daily hospital
service expenses, ambulatory service expenses, ancillary expenses
and other operating expenses, excluding income taxes.
(30) 'Outpatient renal dialysis facility' means a facility that
provides renal dialysis services directly to outpatients.
(31) 'Person' means an individual, a trust or estate, a
partnership, a corporation (including associations, joint stock
companies and insurance companies), a state, or a political
subdivision or instrumentality, including a municipal
corporation, of a state.
(32) 'Skilled nursing facility' means a facility or a distinct
part of a facility, that is primarily engaged in providing to
inpatients skilled nursing care and related services for patients
who require medical or nursing care, or an institution that
provides rehabilitation services for the rehabilitation of
injured, disabled or sick persons.
(33) 'Special inpatient care facility' means a facility with
permanent inpatient beds and other facilities designed and
utilized for special health care purposes, including but not
limited to a rehabilitation center, a college infirmary, a
chiropractic facility, a facility for the treatment of alcoholism
or drug abuse, an inpatient care facility meeting the
requirements of ORS 441.065, and any other establishment falling
within a classification established by the Department of Human
Services, after determination of the need for such classification
and the level and kind of health care appropriate for such
classification.
(34) 'Total deductions from gross revenue' or 'deductions from
revenue' means reductions from gross revenue resulting from
inability to collect payment of charges. Such reductions include
bad debts; contractual adjustments; uncompensated care;
administrative, courtesy and policy discounts and adjustments and
Enrolled House Bill 2526 (HB 2526-B) Page 84
other such revenue deductions. The deduction shall be net of the
offset of restricted donations and grants for indigent care.
SECTION 92. ORS 442.760 is amended to read:
442.760. Notwithstanding the provisions of ORS 183.310
{ - (6) - } { + (7) + } and 183.480, only a party to a
cooperative program agreement or the Director of Human Services
shall be entitled to a contested case hearing or judicial review
of an order issued pursuant to ORS 442.700 to 442.760 and
646.740.
SECTION 93. ORS 527.662 is amended to read:
527.662. (1) In order to implement more efficiently the
provisions of the Oregon Forest Practices Act, the State Board of
Forestry may enter into stewardship agreements with landowners,
in lieu of the traditional mechanisms of operation planning and
review, inspections and enforcement.
(2) The objectives of stewardship agreements are to provide
responsible and knowledgeable forest landowners with an
opportunity to plan and implement forest management strategies
with reduced oversight and regulation from the State Forestry
Department and to provide an incentive for forest landowners to
provide for enhancement and restoration of fish and wildlife
habitat, water quality and other forest resources.
(3) As used in this section and in ORS 527.670 (3), '
stewardship agreement' means an agreement voluntarily entered
into and signed by a forest landowner, or representative of the
landowner, and the State Board of Forestry or the State Forester,
that sets forth the terms under which the landowner will
self-regulate to meet the purposes of the Oregon Forest Practices
Act.
(4) The board shall adopt procedures and criteria for
stewardship agreements. Generally, those procedures shall require
that:
(a) Each participating landowner prepare a stewardship plan
that includes:
(A) A description of the lands covered by the agreement.
(B) A detailed inventory of streams, high-risk sites, historic
or legacy road problem areas, known resource sites needing
protection pursuant to ORS 527.710 (3)(a) and other concerns
described by the board.
(C) Prescriptions for the protection of resources described in
the inventory that will result in meeting the objectives of the
Oregon Forest Practices Act as described in ORS 527.630 and the
administrative rules adopted pursuant to the Oregon Forest
Practices Act.
(D) Plans for the restoration and enhancement of forest
resources. Such plans may include but need not be limited to:
(i) Vacating or relocating roads that, because of their
location, present a higher risk to water quality than if they had
been located and designed to current rule standards pursuant to
ORS 527.710;
(ii) Restoration or enhancement of upstream and downstream fish
passage, including replacement of crossing structures not
designed to current rule standards pursuant to ORS 527.710;
(iii) Enhancement of fish habitat through the placement of
woody debris or other structures in or adjacent to stream
channels;
(iv) Retention of conifers adjacent to streams, to supplement
current rule requirements pursuant to ORS 527.710, consistent
with forest health considerations;
Enrolled House Bill 2526 (HB 2526-B) Page 85
(v) Restoration of habitat for threatened and endangered
species or other wildlife habitat in short supply;
(vi) Enhanced protection of salmonid production areas;
(vii) Restoration of overwintering salmonid habitat; or
(viii) Participation in a monitoring program sponsored by the
State Forestry Department or State Department of Fish and
Wildlife.
(b) Each landowner subject to a stewardship agreement
demonstrate a clear capability to carry out the provisions of the
stewardship plan and have a past record of good compliance with
the Oregon Forest Practices Act.
(c) The agreement contain a statement to the effect that if
changes occur in the Oregon Forest Practices Act or rules adopted
pursuant thereto, or in information pertinent to the inventory
required in paragraph (a)(B) of this subsection, the landowner
will make necessary changes in its forest practices to ensure
ongoing compliance with the Oregon Forest Practices Act.
(d) The State Forester conduct periodic audits on lands under
the stewardship agreement at intervals of no more than three
years to determine whether the plan is being implemented and
whether the agreement should be continued, revised or
discontinued.
(e) If the agreement applies to lands that contain high-risk
sites, the landowner shall describe the geotechnical expertise
that will be applied and the method that will be used to make
decisions regarding road construction and harvesting.
(5) Stewardship agreements may provide a benefit to landowners
by removing procedural requirements such as individual operation
plans or waiting periods but shall not waive the requirement for
notification of operations pursuant to ORS 527.670 (6) or the
waiting period for aerial application of chemicals pursuant to
ORS 527.670 (9).
(6) The board may delegate any or all authority for the
preparation and approval of stewardship agreements to the State
Forester.
(7) At least 28 days prior to the approval or amendment of a
stewardship agreement, the State Forester shall give notice of
the State Forester's intended action:
(a) To any person who has requested of the State Forester in
writing that the person be sent copies of notices of intent to
enter into a stewardship agreement; and
(b) To any person who has requested of the State Forester in
writing that the person be sent copies of notices of intent to
operate and written plans for the specific area affected by the
proposed stewardship agreement and who has paid any applicable
fee as provided in ORS 527.670 (8).
(8) Persons may submit written comments pertaining to the
stewardship agreement to the State Forester within the time
specified in subsection (9) of this section.
(9) The notice required in subsection (7) of this section shall
provide a location description of the property subject to the
proposed stewardship agreement, specify the deadline for comment,
which shall not be less than 21 days from the date notice is
sent, and shall indicate how copies of the stewardship agreement
and other pertinent documents may be obtained, or if voluminous
or costly to reproduce, the conditions of their availability to
the public.
(10) Upon approval and signature of a stewardship agreement or
amendment thereto, the State Forester shall notify persons who
submitted timely comments of the approval.
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(11) Any person adversely affected or aggrieved by operations
to be conducted under an approved or amended stewardship
agreement may file a written request to the board for a hearing
if the person submitted written comments pertaining to the
stewardship agreement within the time limits established in
subsections (8) and (9) of this section.
(12) A request for hearing filed under subsection (11) of this
section shall be filed within 21 days of the date the State
Forester sent the notice of approval or amendment pursuant to
subsection (10) of this section. The person requesting a hearing
shall also serve a complete copy of the request, within the
21-day period, on the landowner that is party to the stewardship
agreement. The request shall include:
(a) A copy of the comments pertaining to the stewardship
agreement that were filed by the person requesting the hearing;
(b) A statement that shows the person is adversely affected or
aggrieved by operations to be conducted under the stewardship
agreement and the person has an interest that is addressed by the
Oregon Forest Practices Act or rules adopted thereunder; and
(c) A statement that describes why the person believes the
stewardship agreement is not in conformity with this section and
rules of the board pursuant thereto.
(13) If the board finds that the person making the request
meets the requirements of subsection (12) of this section, the
board shall set the matter for hearing within 45 calendar days
after receipt of the request for hearing. The landowner that is
party to the stewardship agreement shall be an allowable party to
the hearing. The person requesting the hearing may raise, in the
hearing, only those issues that the person raised in written
comments filed under subsection (8) of this section relating to
conformity of the stewardship agreement to this section and the
rules of the board. A final order shall be issued rescinding,
affirming or modifying the approval or amendment of the
stewardship agreement within 45 days of the conclusion of the
hearing unless all parties agree to an extension of the time
limit.
(14) The board may award reasonable attorney fees and expenses
to each of the prevailing parties against any other party that
the board finds presented a position without probable cause to
believe the position was well-founded, or made a request
primarily for a purpose other than to secure appropriate action
by the board.
(15) The board may delegate to the { - hearing officer - }
{ + administrative law judge + } the authority to issue final
orders on matters under this section. Hearings provided under
this section shall be conducted as contested case hearings under
ORS 183.413 to 183.470. The board may establish such rules as it
considers appropriate to carry out the provisions of this
section. Appeals from final hearing orders under this section
shall be provided in ORS 183.482.
SECTION 94. ORS 527.700 is amended to read:
527.700. (1) Any operator, timber owner or landowner affected
by any finding or order of the State Forester issued under ORS
527.610 to 527.770 and 527.992 may request a hearing within 30
days after issuance of the order. The hearing shall be commenced
within 14 days after receipt of the request for hearing and a
final order shall be issued within 28 days of the request for the
hearing unless all parties agree to an extension of the time
limit.
Enrolled House Bill 2526 (HB 2526-B) Page 87
(2) The State Board of Forestry may delegate to the
{ - hearing officer - } { + administrative law judge + } the
authority to issue final orders on matters under this section.
Hearings provided under this section shall be conducted as
contested case hearings under ORS 183.413 to 183.470. The board
may establish such rules as it deems appropriate to carry out the
provisions of this section. Appeals from final hearing orders
under this section shall be provided in ORS 183.482.
(3) Any person adversely affected or aggrieved by an operation
described in subsection (4) of this section may file a written
request to the board for a hearing if the person submitted
written comments pertaining to the operation within the time
limits established under ORS 527.670 (9).
(4) A request for hearing may be filed under subsection (3) of
this section only if a written plan was required pursuant to ORS
527.670 (3).
(5) A request for hearing filed under subsection (3) of this
section shall be filed within 14 calendar days of the date the
written plan was approved. Copies of the complete request shall
be served, within the 14-day period, on the operator, timber
owner and landowner. The request shall include:
(a) A copy of the written plan on which the person is
requesting a hearing;
(b) A copy of the comments pertaining to the operation that
were filed by the person requesting the hearing;
(c) A statement that shows the person is adversely affected or
aggrieved by the operation and has an interest which is addressed
by the Oregon Forest Practices Act or rules adopted thereunder;
and
(d) A statement of facts that establishes that the operation is
of the type described in ORS 527.670 (3).
(6) If the board finds that the person making the request meets
the requirement of subsection (5)(c) of this section, the board
shall set the matter for hearing within 14 calendar days after
receipt of the request for hearing. The operator, timber owner
and landowner shall be allowable parties to the hearing. The
person requesting the hearing may raise, in the hearing, only
those issues that the person raised in written comments filed
under ORS 527.670 (9) relating to conformity with the rules of
the board. A final order shall be issued rescinding, affirming or
modifying the written plan within 28 days after the request for
hearing was filed, unless all parties agree to an extension of
the time limit.
(7) The board may award reasonable attorney fees and expenses
to each of the prevailing parties against any other party who the
board finds presented a position without probable cause to
believe the position was well-founded, or made a request
primarily for a purpose other than to secure appropriate action
by the board.
(8)(a) Upon the written request of a person requesting a
hearing under subsection (3) of this section, a stay of the
operation subject to the hearing may be granted upon a showing
that:
(A) Commencement or continuation of the operation will
constitute a violation of the rules of the board;
(B) The person requesting the stay will suffer irreparable
injury if the stay is not granted; and
(C) The requirements of subsections (3), (4) and (5) of this
section are met.
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(b) If the board grants the stay, it shall require the person
requesting the stay to give an undertaking which may be in the
amount of the damages potentially resulting from the stay, but in
any event shall not be less than $15,000. The board may impose
other reasonable requirements pertaining to the grant of the
stay. The board shall limit the effect of the stay to the
specific geographic area or elements of the operation for which
the person requesting the stay has demonstrated a violation of
the rules and irreparable injury under paragraph (a) of this
subsection.
(c) If the board affirms the written plan pertaining to the
operation for which the stay was granted, the board shall award
reasonable attorney fees and actual damages in favor of each of
the prevailing parties, to the extent incurred by each, against
the person requesting the stay.
(9) If the board disapproves or changes the written plan as
submitted and approved by the State Forester pertaining to any
operation, the board shall award reasonable attorney fees and
costs against the state in favor of each of the prevailing
parties.
(10) As used in this section, 'person' means any individual,
partnership, corporation, association, governmental subdivision
or public or private organization of any character.
SECTION 95. ORS 527.765 is amended to read:
527.765. (1) The State Board of Forestry shall establish best
management practices and other rules applying to forest practices
as necessary to insure that to the maximum extent practicable
nonpoint source discharges of pollutants resulting from forest
operations on forestlands do not impair the achievement and
maintenance of water quality standards established by the
Environmental Quality Commission for the waters of the state.
Such best management practices shall consist of forest practices
rules adopted to prevent or reduce pollution of waters of the
state. Factors to be considered by the board in establishing
best management practices shall include, where applicable, but
not be limited to:
(a) Beneficial uses of waters potentially impacted;
(b) The effects of past forest practices on beneficial uses of
water;
(c) Appropriate practices employed by other forest managers;
(d) Technical, economic and institutional feasibility; and
(e) Natural variations in geomorphology and hydrology.
(2) The board shall consult with the Environmental Quality
Commission in adoption and review of best management practices
and other rules to address nonpoint source discharges of
pollutants resulting from forest operations on forestlands.
(3)(a) Notwithstanding ORS 183.310 { - (7) - } { + (8) + },
upon written petition for rulemaking under ORS 183.390 of any
interested person or agency, the board shall review the best
management practices adopted pursuant to this section. In
addition to all other requirements of law, the petition must
allege with reasonable specificity that nonpoint source
discharges of pollutants resulting from forest operations being
conducted in accordance with the best management practices are a
significant contributor to violations of such standards.
(b) Notwithstanding the time limitations of ORS 183.390, the
board shall complete its review of a petition and either dismiss
the petition in accordance with paragraph (c) of this subsection
or commence rulemaking in accordance with paragraph (f) of this
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subsection within 90 days of the date the petition for review was
filed.
(c) Except as provided in paragraph (d) of this subsection, if
the board determines that forest operations being conducted in
accordance with the best management practices are neither
significantly responsible for particular water quality standards
not being met nor are a significant contributor to violations of
such standards, the board shall issue an order dismissing the
petition.
(d) If the petition for review of best management practices is
made by the Environmental Quality Commission, the board shall not
terminate the review without the concurrence of the commission,
unless the board commences rulemaking in accordance with
paragraph (f) of this subsection.
(e) If a petition for review is dismissed, upon conclusion of
the review, the board shall issue an order that includes findings
regarding specific allegations in the petition and shall state
the board's reasons for any conclusions to the contrary.
(f) If, pursuant to review, the board determines that best
management practices should be reviewed, the board shall commence
rulemaking proceedings for that purpose. Rules specifying the
revised best management practices must be adopted not later than
two years from the filing date of the petition for review unless
the board, with concurrence of the Environmental Quality
Commission, finds that special circumstances require additional
time.
(g) Notwithstanding the time limitation established in
paragraph (f) of this subsection, at the request of the
Environmental Quality Commission, the board shall take action as
quickly as practicable to prevent significant damage to
beneficial uses identified by the commission while the board is
revising its best management practices and rules as provided for
in this section.
(h) The board shall include in its triennial review of
administrative rules in accordance with ORS 183.545 an analysis
of the effectiveness of the best management practices and other
rules applying to forest practices adopted to maintain water
quality standards established by the Environmental Quality
Commission.
SECTION 96. ORS 537.170 is amended to read:
537.170. (1) Within 45 days after the Water Resources Director
schedules a contested case hearing under ORS 537.153 (8), the
Water Resources Department shall hold the contested case hearing.
The issues to be considered in the contested case hearing shall
be limited to issues identified by the { - hearings officer - }
{ + administrative law judge + }.
(2) Notwithstanding the provisions of ORS 183.310 to 183.550
pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be
limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under
ORS 537.153 (5) and who requests to intervene in the contested
case hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in
accordance with the applicable provisions of ORS 183.310 to
183.550 except:
(a) As provided in subsections (1) and (2) of this section; and
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(b) An interlocutory appeal under ORS 183.480 (3) shall not be
allowed.
(4) If applicable, an application to appropriate water for the
generation of electricity submitted under ORS 537.140 shall be
included in the consolidated review and hearings process under
ORS 543.255.
(5) Each person submitting a protest or a request for standing
shall raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position
by the close of the protest period. Failure to raise a reasonably
ascertainable issue in a protest or in a hearing or failure to
provide sufficient specificity to afford the Water Resources
Department an opportunity to respond to the issue precludes
judicial review based on that issue.
(6) If, after the contested case hearing or, if a hearing is
not held, after the close of the period allowed to file a
protest, the director determines that the proposed use does not
comply with the standards set forth in ORS 543.017 or rules
adopted by the Water Resources Commission under ORS 543.017 or
would otherwise impair or be detrimental to the public interest,
the director shall issue a final order rejecting the application
or modifying the proposed final order to conform to the public
interest. If, after the contested case hearing or, if a hearing
is not held, after the close of the period allowed to file a
protest, the director determines that the proposed use would not
impair or be detrimental to the public interest, the director
shall issue a final order approving the application or otherwise
modifying the proposed final order. A final order may set forth
any of the provisions or restrictions to be included in the
permit concerning the use, control and management of the water to
be appropriated for the project, including, but not limited to, a
specification of reservoir operation and minimum releases to
protect the public interest.
(7) If a contested case hearing is not held:
(a) Where the final order modifies the proposed final order,
the applicant may request and the department shall schedule a
contested case hearing as provided under subsection (3) of this
section by submitting the information required for a protest
under ORS 537.153 (6) within 14 days after the director issues
the final order. However, the issues on which a contested case
hearing may be requested and conducted under this paragraph shall
be limited to issues based on the modifications to the proposed
final order.
(b) Only the applicant or a protestant may appeal the
provisions of the final order in the manner established in ORS
183.310 to 183.550 for appeal of order other than contested
cases.
(8) If the presumption of public interest under ORS 537.153 (2)
is overcome, then before issuing a final order, the director or
the commission, if applicable, shall make the final determination
of whether the proposed use or the proposed use as modified in
the proposed final order would impair or be detrimental to the
public interest by considering:
(a) Conserving the highest use of the water for all purposes,
including irrigation, domestic use, municipal water supply, power
development, public recreation, protection of commercial and game
fishing and wildlife, fire protection, mining, industrial
purposes, navigation, scenic attraction or any other beneficial
use to which the water may be applied for which it may have a
special value to the public.
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(b) The maximum economic development of the waters involved.
(c) The control of the waters of this state for all beneficial
purposes, including drainage, sanitation and flood control.
(d) The amount of waters available for appropriation for
beneficial use.
(e) The prevention of wasteful, uneconomic, impracticable or
unreasonable use of the waters involved.
(f) All vested and inchoate rights to the waters of this state
or to the use of the waters of this state, and the means
necessary to protect such rights.
(g) The state water resources policy formulated under ORS
536.295 to 536.350 and 537.505 to 537.534.
(9) Upon issuing a final order, the director shall notify the
applicant and each person who submitted written comments or
protests or otherwise requested notice of the final order and
send a copy of the final order to any person who requested a copy
and paid the fee required under ORS 536.050 (1)(p).
SECTION 97. ORS 537.622 is amended to read:
537.622. (1) Within 45 days after the Water Resources Director
schedules a contested case hearing under ORS 537.621 (9), the
Water Resources Department shall hold the contested case hearing.
The issues to be considered in the contested case hearing shall
be limited to issues identified by the { - hearings officer - }
{ + administrative law judge + }.
(2) Notwithstanding the provisions of ORS 183.310 to 183.550
pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be
limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under
ORS 537.621 (6) and who requests to intervene in the contested
case hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in
accordance with the applicable provisions of ORS 183.310 to
183.550 except:
(a) As provided in subsections (1) and (2) of this section; and
(b) An interlocutory appeal under ORS 183.480 (3) shall not be
allowed.
(4) Each person submitting a protest or a request for standing
shall raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position
by the close of the protest period. Failure to raise a reasonably
ascertainable issue in a protest or in a hearing or failure to
provide sufficient specificity to afford the Water Resources
Department an opportunity to respond to the issue precludes
judicial review based on that issue.
SECTION 98. ORS 543.230 is amended to read:
543.230. (1) The Water Resources Commission shall, by order or
rule, provide for the time and manner of hearings upon
applications. However, upon request by any person made within 30
days after the Water Resources Director issues an order
pertaining to cumulative impacts under ORS 543.255, the Water
Resources Commission shall conduct a contested case hearing in
accordance with the applicable provisions of ORS 183.310 to
183.550 and any rules adopted by the commission.
(2) Every application for the appropriation of water for the
generation of electricity subject to the terms of ORS 543.010 to
543.610 shall be subject to protest or remonstrance on behalf of
the public, or any district organized for public purposes, or any
Enrolled House Bill 2526 (HB 2526-B) Page 92
interested private person, on the ground that the proposed
construction, development or improvement would damage or destroy
the use or utility of the stream or other body of water involved
for other beneficial purposes, including propagation of fish,
scenic, esthetic, recreational, park, highway or other beneficial
use. All protests and remonstrances under this subsection must be
filed with the commission within the time specified in the notice
and must be in writing and verified by the parties protesting,
and a certified copy thereof shall be served upon the applicant
for the permit. However, in the discretion of the { - hearing
officer - } { + administrative law judge + }, at the time of the
hearing any interested party may make an oral protest if there
exists any good reason therefor, and the { - hearing
officer - } { + administrative law judge + } shall allow the
applicant to be heard in opposition thereto. Every protest or
remonstrance under this subsection which is not filed and served
as required in this subsection shall be deemed waived.
SECTION 99. ORS 543.990 is amended to read:
543.990. (1) Violation of ORS 543.530 (3) is punishable, upon
conviction, by a fine of not more than $5,000, or by imprisonment
for not more than one year, or both.
(2) Violation of any of the provisions of ORS 543.010 to
543.610, or any of the conditions made a part of any license
issued under ORS 543.010 to 543.610, or any subpoena of the Water
Resources Commission or of { - a hearing officer - } { + an
administrative law judge + } or any person designated by the
commission to take testimony, any lawful order or rule of the
commission is a Class B misdemeanor.
(3) Any person who willfully and knowingly gives false
testimony concerning a material matter in any hearing before the
commission, { - a hearing officer - } { + an administrative
law judge + } or any person designated by the commission to take
testimony, or in any deposition or affidavit to be used in a
matter pending before the commission or { - a hearing
officer - } { + administrative law judge + }, or willfully and
knowingly verifies a false statement or report filed with the
commission, shall be guilty of perjury and may be prosecuted and
punished as otherwise provided by law for the prosecution and
punishment of perjury.
SECTION 100. ORS 543A.130 is amended to read:
543A.130. (1) If a contested case hearing is conducted under
ORS 543A.120, the issues to be considered in the contested case
hearing shall be limited to issues identified by the
{ - hearings officer - } { + administrative law judge + }.
(2) Notwithstanding the provisions of ORS 183.310 to 183.550
pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be
limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under
ORS 543A.120 and who requests to intervene in the contested case
hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in
accordance with the applicable provisions of ORS 183.310 to
183.550 except:
(a) As provided in subsections (1) and (2) of this section; and
(b) An interlocutory appeal under ORS 183.480 (3) shall not be
allowed.
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(4) Each person submitting a protest or a request for standing
shall raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position
by the close of the protest period. Failure to raise a reasonably
ascertainable issue in a protest or in a hearing or failure to
provide sufficient specificity to afford the Water Resources
Department an opportunity to respond to the issue precludes
judicial review based on that issue.
(5) If, after the contested case hearing or, if a hearing is
not held, after the close of the period allowed to file a
protest, the Water Resources Director determines that the
proposed reauthorization does not comply with the standards set
forth in ORS 543A.025 or rules adopted by the Water Resources
Commission under ORS 543A.025, the director shall issue a final
order rejecting the application or modifying the proposed final
order to conform to the public interest. If, after the contested
case hearing or, if a hearing is not held, after the close of the
period allowed to file a protest, the director determines that
the proposed reauthorization complies with ORS 543A.025, the
director shall issue a final order approving the application for
reauthorization or otherwise modifying the proposed final order.
A final order may set forth any of the provisions or restrictions
to be included in the certificate concerning the use, control and
management of the water to be appropriated for the project,
including but not limited to a specification of reservoir
operation and minimum releases to protect the public interest.
(6) If a contested case hearing is not held:
(a) Where the final order modifies the proposed final order,
the applicant may request and the department shall schedule a
contested case hearing as provided under subsection (3) of this
section by submitting the information required for a protest
under ORS 543A.120 within 14 days after the director issues the
final order. However, the issues on which a contested case
hearing may be requested and conducted under this paragraph shall
be limited to issues based on the modifications to the proposed
final order.
(b) Only the applicant or a protestant may appeal the
provisions of the final order in the manner established in ORS
183.310 to 183.550 for appeal of orders other than contested
cases.
(7) Before issuing a final order, the director or the
commission, if applicable, shall make the final determination of
whether the proposed reauthorization or the proposed
reauthorization as modified in the proposed final order complies
with the standards set forth in ORS 543A.025.
(8) In a proceeding to reauthorize a water right for a
federally licensed project, the final order may be different from
the proposed final order based on:
(a) New information developed during the federal relicensing
process pertaining to environmental impacts or assessments that
reveals impacts not known at the time the proposed final order
was issued;
(b) Significant changes in the final application to the Federal
Energy Regulatory Commission;
(c) Conditions and restrictions in the Federal Energy
Regulatory Commission license that are inconsistent with the
water right as proposed in the proposed final order; or
(d) Protests received after the proposed final order is issued.
(9) Upon issuing a final order, the director shall notify the
applicant and each person who submitted written comments or
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protests or otherwise requested notice of the final order and
send a copy of the final order to any person who requested a copy
and paid the fee required under ORS 536.050 (1)(p).
SECTION 101. ORS 657.275 is amended to read:
657.275. (1) If the Director of the Employment Department or
any interested party files with the Employment Appeals Board a
timely application for review, the board shall promptly affirm,
modify or set aside the decision of the { - hearing officer - }
{ + administrative law judge + }. The board shall promptly
notify the claimant and any other interested party of its
decision. If the board finds that additional evidence is required
to reach a decision, it may remand the matter to the
{ - hearing officer - } { + administrative law judge + } to
conduct a hearing to obtain additional evidence in the matter.
The board shall promptly notify the claimant and any other
interested party of such action. The
{ - hearing officer - } { + administrative law judge + } may
either make a new decision based on the additional and original
evidence or forward the additional evidence to the board for a
decision. If the
{ - hearing officer - } { + administrative law judge + }
issues a new decision, it shall be subject to review in
accordance with the provisions of ORS 657.270 (4).
(2) The board shall perform de novo review on the record. The
board may address issues raised by evidence in the record,
including but not limited to the nature of a separation,
notwithstanding the scope of the issues raised by the parties,
the arguments set forth in a party's application for review or
the parties' written or oral arguments. The board may enter its
own findings and conclusions or may adopt the findings and
conclusions of the { - hearing officer - } { + administrative
law judge + }, or any part thereof. When there is evidence in the
record both to make more probable and less probable the existence
of any basic fact or inference, the board need not explain its
decision to believe or rely on such evidence unless the
{ - hearing officer - } { + administrative law judge + } has
made an explicit credibility determination regarding the source
of such facts or evidence. The board is not required to give any
weight to implied credibility findings. The decision of the board
shall become the final order unless a petition for judicial
review is filed in accordance with ORS 657.282.
SECTION 102. ORS 657.471 is amended to read:
657.471. (1) Subject to the provisions of subsections (2) to
(7) and (10) of this section, benefits paid to an eligible
individual shall be charged to each of the individual's employers
during the base year in the same proportion that the wages paid
by each employer to the individual during the base year bear to
the wages paid by all employers to that individual during that
year.
(2) With the exception of a political subdivision electing to
pay taxes under ORS 657.509, an employer's account shall not be
charged with benefits paid an unemployed individual in excess of
one-third of the base year wages paid that individual while in
the employ of such employer.
(3) Benefits paid to an individual for unemployment immediately
after the expiration of a period of disqualification for having
left work of an employer voluntarily without good cause shall not
be charged to that employer.
(4) Benefits paid to an individual for unemployment immediately
after the expiration of a period of disqualification for having
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been discharged by an employer for misconduct shall not be
charged to that employer.
(5) Benefits paid without any disqualification to an individual
shall not be charged to an employer of the individual for the
immediate period of unemployment when:
(a) The individual left work of the employer voluntarily for
good cause not attributable to the employer; or
(b) The employer discharged the individual because the
individual was unable to satisfy a job prerequisite required by
law or administrative rule.
(6) If it is determined under the provisions of subsection (3),
(4) or (5) of this section that benefits paid to an individual
shall not be charged to an employer, such employer's account
shall not be charged for any benefits paid for any subsequent
period or periods of unemployment during that individual's
affected benefit year or during any benefit year beginning within
52 weeks subsequent to the affected benefit year.
(7) If a base-year employer, not otherwise eligible for relief
of charges for benefits under this section, receives notification
of an initial valid determination of a claim filed by an
individual who:
(a) Left work of such employer voluntarily and not attributable
to the employer, such employer may request relief of charges
within 30 days of the date the notice provided for in ORS 657.266
is mailed or delivered to the employer. The request must advise
the Director of the Employment Department in writing the date of
such leaving and that such leaving was voluntary and not
attributable to the employer and the reason therefor. Upon
receipt of such notice from the employer the director shall
investigate the separation and if the resulting determination,
which shall be made by the director, establishes that the leaving
was voluntary and not attributable to the employer, that
employer's account shall not be charged with benefits during that
individual's benefit year. If the individual was reemployed by
such employer prior to the filing of the initial valid claim, the
employer shall not receive relief of the employer's account under
this subsection;
(b) Was disqualified for the individual's most recent
separation from such employer by the director's decision that
found the individual has been discharged for misconduct connected
with the work, that employer may request relief of charges within
30 days of the date the notice provided for in ORS 657.266 is
mailed or delivered to the employer. Upon receipt of such request
from the employer, the director shall examine department records
and if the requirements of this subsection have been met shall
grant the relief of charges to that employer for benefits paid to
the individual during the benefit year; or
(c) Was discharged for reasons that would be disqualifying
under ORS 657.176 (2)(a), (b), (f) or (g) or (9), the employer
may request relief of charges within 30 days of the date the
notice provided for in ORS 657.266 is mailed or delivered to the
employer. The request must specify the date of the discharge and
the reasons why the employer believes the discharge was for
reasons that would be disqualifying under ORS 657.176 (2)(a),
(b), (f) or (g) or (9). Upon receipt of the request from the
employer, the director shall review the information provided by
the employer and determine whether the employer is entitled to
relief of charges for benefits paid to the individual during the
benefit year. If the director determines that the employer is
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entitled to such relief of charges, the director shall grant the
relief.
(8) The determination of the director under subsection (7)(a)
and (c) of this section shall be final in all cases unless an
application for hearing is filed within 20 days after delivery of
such decision, or, if mailed, within 20 days after the same was
mailed to the employer's last-known address. When a request for
hearing has been timely filed, { - a hearing officer - } { +
an administrative law judge + } shall be assigned to conduct a
hearing. After the { - hearing officer - } { +
administrative law judge + } has afforded all parties an
opportunity for a fair hearing, the { - hearing officer - }
{ + administrative law judge + } shall affirm or reverse the
decision and promptly notify all parties entitled to notice of
the decision and the reasons therefor. Decisions of the
{ - hearing officer - } { + administrative law judge + } under
this subsection become final and may be judicially reviewed as
provided in ORS 657.684 to the extent applicable.
(9) If the director finds that an employer or any employee,
officer or agent of an employer, in submitting facts under
subsection (7) or (8) of this section willfully makes a false
statement or representation or willfully fails to report a
material fact concerning the termination of an individual's
employment, the director shall make a determination thereon
charging the employer's reserve account not less than two nor
more than 10 times the weekly benefit amount of the claimant or
claimants, as the case may be. The director shall give notice to
the employer of the determination under this subsection and such
decision of the director shall become final unless an application
for hearing is filed in accordance with subsection (8) of this
section.
(10) Benefits paid to an individual shall not be charged to a
base-year employer if:
(a) The employer furnished part-time work to the individual
during the base year;
(b) The individual has become eligible for benefits because of
loss of employment with one or more other employers;
(c) The employer has continued to furnish part-time work to the
individual in substantially the same amount as during the
individual's base year; and
(d) The employer requests relief of charges within 30 days of
the date the notice provided for in ORS 657.266 is mailed or
delivered to the employer.
SECTION 103. ORS 657.487 is amended to read:
657.487. Judicial review of decisions or orders under ORS
657.485 shall be as provided for review of orders in contested
cases in ORS 183.310 to 183.550, except that the petition shall
be filed within 20 days after the order is final. The Director of
the Employment Department may file petition for judicial review
in accordance with this section from decisions of the
{ - hearing officer - } { + administrative law judge + }.
SECTION 104. ORS 657.665 is amended to read:
657.665. (1) Information secured from employing units,
employees or other individuals pursuant to this chapter:
(a) Shall be confidential and for the exclusive use and
information of the Director of the Employment Department in the
discharge of duties and shall not be open to the public (other
than to public employees in the performance of their public
duties under state or federal laws for the payment of
unemployment insurance benefits and to public employees in the
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performance of their public duties under the recognized
compensation and retirement, relief or welfare laws of this
state), except to the extent necessary for the presentation of a
claim and except as required by the regulations of the United
States Secretary of Health and Human Services pursuant to section
3304(a) of the Federal Unemployment Tax Act, as amended, and
except as required by section 303 of the Social Security Act, as
amended.
(b) Shall not be used in any court in any action or proceeding
pending therein unless the director or the state is a party to
such action or proceedings or the proceedings concern the
establishment, enforcement or modification of a support
obligation and support services are being provided by the
Division of Child Support or the district attorney pursuant to
ORS 25.080.
(2) However, any claimant or legal representative, at a hearing
before { - a hearing officer - } { + an administrative law
judge + }, shall be supplied with information from such records
to the extent necessary for the proper presentation of a claim.
(3) Notwithstanding subsection (1) of this section, information
secured from employing units pursuant to this chapter may be
released:
(a) To agencies of this state, and political subdivisions
acting alone or in concert in city, county, metropolitan,
regional or state planning to the extent necessary to properly
carry out governmental planning functions performed under
applicable law. Information provided such agencies shall be
confidential and shall not be released by such agencies in any
manner that would be identifiable as to individuals, claimants,
employees or employing units. Costs of furnishing information
pursuant to this subsection not prepared for the use of the
Employment Department shall be borne by the parties requesting
the information; and
(b) In accordance with ORS 657.673.
(4) Nothing in this section shall prevent the Employment
Department from providing names and addresses of employing units
to the Bureau of Labor and Industries for the purpose of
disseminating information to employing units. The names and
addresses provided shall be confidential and shall not be used
for any other purposes. Costs of furnishing information pursuant
to this subsection not prepared for the use of the Employment
Department shall be borne by the bureau.
(5) Nothing in this section shall prevent the Employment
Department from providing to the Commissioner of the Bureau of
Labor and Industries, for the purpose of performing duties under
ORS 279.348 to 279.380, the names, addresses and industrial codes
of employer units, the number of employees each unit employs
during a given time period and the firm number assigned to
employer units by the Employment Department. Information so
provided shall be confidential and shall not be released by the
commissioner in any manner that would identify such employing
units except to the extent necessary to carry out the purposes of
this subsection and as provided in subsection (1)(b) of this
section. Costs of furnishing information pursuant to this
subsection not prepared for the use of the Employment Department
shall be borne by the bureau.
(6) Nothing in this section shall prevent the Employment
Department from providing information required under ORS 657.660
(3) and (4) to the Public Employees Retirement System for the
purpose of determining the eligibility of members of the
Enrolled House Bill 2526 (HB 2526-B) Page 98
retirement system for disability retirement allowances under ORS
chapter 238. The information provided shall be confidential and
shall not be used for any other purposes. Costs of furnishing
information pursuant to this subsection shall be borne by the
Public Employees Retirement System.
(7) Any officer or employee of the Director of the Employment
Department, who, except with authority of the director or
pursuant to regulations, or as otherwise required by law, shall
disclose confidential information under this section, thereafter
may be disqualified from holding any appointment or employment by
the director.
(8) Nothing in this section shall prevent the Employment
Department from providing information to the Department of
Revenue for the purpose of performing its duties under ORS
293.250, or the revenue and tax laws of this state. Information
provided may include names and addresses of employers and
employees and payroll data of employers and employees.
Information so provided shall be confidential and shall not be
released by the Director of the Department of Revenue in any
manner that would identify such employing unit or employee except
to the extent necessary to carry out its duties under ORS 293.250
or in auditing or reviewing any report or return required or
permitted to be filed under the revenue and tax laws administered
by the department. However, the Director of the Department of
Revenue shall not disclose any information received to any
private collection agency or for any other purpose. Costs of
furnishing information pursuant to this subsection not prepared
for the use of the Employment Department shall be borne by the
Department of Revenue.
(9) Nothing in this section shall prevent the Employment
Department from providing information to the Department of
Consumer and Business Services for the purpose of performing its
duties under ORS chapter 656. Information provided may include
names and addresses of employers and employees and payroll data
of employers and employees. Information so provided shall be
confidential and shall not be released by the Director of the
Department of Consumer and Business Services in any manner that
would identify such employing unit or employee except to the
extent necessary to carry out its duties under ORS chapter 656.
However, the Director of the Department of Consumer and Business
Services shall not disclose any information received to any
private collection agency or for any other purpose. Costs of
furnishing information pursuant to this subsection not prepared
for the use of the Employment Department shall be borne by the
Department of Consumer and Business Services.
(10) Nothing in this section shall prevent the Employment
Department from providing information to the Construction
Contractors Board for the purpose of performing its duties under
ORS chapter 701. Information provided to the board may include
names and addresses of employers and status of their compliance
with this chapter.
(11) Nothing in this section shall prevent the Employment
Department from providing information to the State Fire Marshal
to assist the State Fire Marshal in carrying out duties,
functions and powers under ORS 453.307 to 453.414. Information so
provided shall be the employer or agent name, address, telephone
number and standard industrial classification. Information so
provided shall be confidential and shall not be released by the
State Fire Marshal in any manner that would identify such
employing units except to the extent necessary to carry out
Enrolled House Bill 2526 (HB 2526-B) Page 99
duties under ORS 453.307 to 453.414. Costs of furnishing
information pursuant to this subsection not prepared for the use
of the Employment Department shall be borne by the office of the
State Fire Marshal.
(12) Nothing in this section shall prevent the Employment
Department from providing information to the Oregon Student
Assistance Commission for the purposes of performing the
commission's duties under ORS chapter 348 and Title IV of the
Higher Education Act of 1965, as amended. Information provided
may include names and addresses of employers and employees and
payroll data of employers and employees. Information so provided
shall be confidential and shall not be released by the Oregon
Student Assistance Commission in any manner that would identify
such employing unit or employee except to the extent necessary to
carry out duties under ORS chapter 348 or Title IV of the Higher
Education Act of 1965, as amended. Costs of furnishing
information pursuant to this subsection not prepared for the use
of the Employment Department shall be borne by the Oregon Student
Assistance Commission.
(13) Any person or officer or employee of an entity to whom
information is disclosed or given by the Employment Department
pursuant to this section, who divulges or uses such information
for any purpose other than that specified in the provision of law
or agreement authorizing the use or disclosure, may be
disqualified from holding any appointment or employment, or
performing any service under contract, with the state agency
employing that person or officer.
SECTION 105. ORS 657.681 is amended to read:
657.681. (1) If an employer files a report for the purpose of
determining the amount of contributions due under this chapter
but fails to pay contributions or interest, the Director of the
Employment Department or authorized representative may assess the
amount of contributions or interest due on the basis of the
information submitted and shall give written notice of the
assessment to the employer mailed to the last-known address of
record with the director. In the event that such report is
subsequently found to be incorrect additional assessments may be
made, subsection (5) of this section to the contrary
notwithstanding.
(2) If an employer fails to file a report when required by the
director for the purpose of determining the amount of
contribution due under this chapter, the director or authorized
representative may make an estimate based upon any information of
the amount of wages paid for employment in the period or periods
for which no report was filed and upon the basis of such estimate
shall compute and assess the amount of employer contributions
payable by the employer. Written notice of the assessment shall
be mailed to the last-known address of the employer of record
with the director.
(3) If the director or authorized representative is not
satisfied with a report made by an employer for the purpose of
determining the amount of contribution due under this chapter,
the director or authorized representative may compute the amount
required to be paid upon the basis of facts contained in the
report or upon the basis of any information obtainable and may
make an assessment of the amount of the deficiency. Written
notice of such deficiency assessment shall be mailed to the
last-known address of the employer of record with the director.
(4) If the director or authorized representative has reason to
believe that an employer is insolvent, or that the collection of
Enrolled House Bill 2526 (HB 2526-B) Page 100
any contributions will be jeopardized by delaying collection, the
director or authorized representative may thereupon make an
immediate assessment of the estimated amount of accrued
contributions, noting upon the assessment that it is a jeopardy
assessment levied under this subsection, and may proceed to
enforce collection immediately, but interest shall not begin to
accrue upon such contributions until the due date nor shall court
costs be taxed against such employer on any action to enforce
collection commenced prior to the due date. The director or
authorized representative may, in levying the assessment, demand
a bond or deposit of such security as is necessary to insure
collection of the amount of such assessment. Written notice of
the assessment shall be mailed to the last-known address of the
employer of record with the director.
(5) All assessments provided for in this section shall finally
fix the amount of contributions due and payable unless the
employer shall within 20 days after the mailing of the notice of
assessment apply to the director for a hearing, or unless the
director or authorized representative on the motion of the
director or authorized representative reviews the same prior to a
decision of the { - hearing officer - } { + administrative
law judge + } thereon pursuant to hearing. An employer who fails
to apply for a hearing upon an assessment within the time
provided or, having applied, fails to appear and be heard after
due notice of such hearing, shall be precluded from raising any
defense to any action, suit or proceeding brought by the director
for the recovery of contributions based upon such assessment
which could have been raised in the hearing. The amount of
contributions so assessed under this section shall be subject to
the penalties and interest provided by ORS 657.515 and 657.663.
SECTION 106. ORS 657.684 is amended to read:
657.684. Judicial review of decisions under ORS 657.683 shall
be as provided for review of orders in contested cases in ORS
183.310 to 183.550, except that the petition shall be filed
within 20 days after the order is final. The Director of the
Employment Department may file petition for judicial review in
accordance with this section from decision of the { - hearing
officer - } { + administrative law judge + }. When judicial
review is upon an assessment or assessments made pursuant to ORS
657.681 and the court determines the assessment or assessments
are valid, judgment shall be given in favor of the director for
the amount due as determined by the court.
SECTION 107. ORS 670.315 is amended to read:
670.315. (1) Except as otherwise provided by law { + , + } each
professional licensing board or advisory board, acting through
its chairperson or vice chairperson or { - a hearing
officer - } { + an administrative law judge + }, may administer
oaths, take depositions and issue subpoenas to compel the
attendance of witnesses and the production of books, papers,
records, memoranda or other information necessary to the carrying
out of the laws the board is charged with administering.
(2) If any person fails to comply with a subpoena issued under
this section or refuses to testify on any matters on which the
person may be lawfully interrogated, the procedure provided in
ORS 183.440 shall be followed to compel obedience.
SECTION 108. ORS 670.325 is amended to read:
670.325. (1) All proceedings for the refusal to issue, or the
suspension or revocation of any license, certificate of
registration or other evidence of authority required to practice
any profession subject to the authority of a professional
Enrolled House Bill 2526 (HB 2526-B) Page 101
licensing or advisory board shall be conducted pursuant to the
procedure for contested cases required or authorized by ORS
183.310 to 183.550.
(2) If a professional licensing or advisory board decides that
any person has or is about to engage in any activity that is or
will be a violation of law the board is charged with enforcing,
the board may institute a proceeding in an appropriate circuit
court to restrain the activity or proposed activity. An
injunction may be issued without proof of actual damages, but
does not relieve the defendant of any criminal liability.
(3) Any { - hearing officer - } { + administrative law
judge + } conducting a hearing for a professional licensing board
is vested with full authority of the board to schedule and
conduct hearings on behalf and in the name of the board on all
matters referred to the
{ - hearing officer - } { + administrative law judge + } for
hearing by the board, including proceedings for placing persons
registered or licensed by the board on probation and for
suspension and revocation of registration or licenses, and shall
cause to be prepared and furnished to the board, for decision
thereon by the board, a complete written transcript of the record
of the hearing. The transcript shall contain all evidence
introduced at the hearing and all pleas, motions and objections
and all rulings of the { - hearing officer - } { +
administrative law judge + }. Each { - hearing officer - }
{ + administrative law judge + } may administer oaths and issue
summonses, notices and subpoenas, but may not place any
registrant or licensee on probation or issue, refuse, suspend or
revoke a registration or license.
SECTION 109. ORS 701.160 is amended to read:
701.160. Notwithstanding ORS 9.320:
(1) A party may appear or be represented by an individual who
is not a member of the Oregon State Bar in a proceeding before
the Construction Contractors Board { - or a representative of
the board, - } if:
(a) The party is a corporation and the individual is an officer
of the corporation;
(b) The party is a partnership, or a limited liability
partnership or foreign limited liability partnership as those
terms are defined in ORS 67.005, and the individual is a partner
in the partnership, limited liability partnership or foreign
limited liability partnership;
(c) The party is a limited partnership as defined in ORS 70.005
and the individual is a general partner in the partnership;
(d) The party is a manager-managed limited liability company as
defined in ORS 63.001 and the individual is a manager of the
company; or
(e) The party is a member-managed limited liability company as
defined in ORS 63.001 and the individual is a member of the
company.
(2) In addition to parties described in subsection (1) of this
section, the board, by rule, may recognize particular business
forms as parties that may appear or be represented by an
individual who is not a member of the Oregon State Bar in a
proceeding before the board { - or a representative of the
board - } . A board rule adopted under this subsection must
identify the business form of the party and specify the required
relationship between the party and the individual. The board may
allow appearance or representation of a party only by an
Enrolled House Bill 2526 (HB 2526-B) Page 102
individual who is a director, officer, partner, trustee, manager
or authorized regular employee of the party.
SECTION 110. ORS 776.115 is amended to read:
776.115. The Oregon Board of Maritime Pilots shall:
(1) Fix the manner of calling and fixing the places of
meetings; provided that at least one meeting shall be held each
calendar year.
(2) Provide for efficient and competent pilotage service on all
pilotage grounds, and regulate and limit the number of licensees
and trainees under this chapter, such number of licensees and
trainees to be regulated and limited to the number found by the
board to be required to render efficient and competent pilotage
service. The primary consideration of the board is public safety.
If a proposed rule would result in the significant limitation of
competition among licensees or pilot organizations that exist in
this state on January 1, 1991, the board shall first make a
determination that the proposed rule is essential to protect the
safety of the public.
(3) Establish and fix the boundaries of pilotage grounds not
described in ORS 776.025.
(4) In accordance with the applicable provisions of ORS 183.310
to 183.550, establish by rule a licensing system for persons
licensed to pilot, for persons licensed as trainees and for pilot
organizations who train persons to pilot, including but not
limited to provisions prescribing:
(a) The form and content of and the times and procedures for
submitting an application for license issuance and renewal. The
pendency of an investigation shall not affect the renewal
process.
(b) The term of license and the annual fee, not to exceed
$1,500.
(c) The requirements for and the manner of testing competency
of license applicants.
(d) Those actions or circumstances that constitute failure to
achieve or maintain competency or that otherwise constitute a
danger to public health and safety and for which the board may
refuse to issue or renew a license, may suspend or revoke a
license or may reprimand a licensee.
(e) Classes of licenses that specify the size of vessels the
licensee is authorized to be trained to pilot or to pilot on
those river pilotage grounds for which the trainee or pilot is
licensed.
(5)(a) Fix, at reasonable and just rates, pilotage fees, extra
fees for vessels in distress, fees for extraordinary pilotage
services, fees for a licensee or trainee being carried to sea
unwillingly and reimbursement for the return to station or for
the detention of a licensee or trainee; except that pilotage fees
shall not be less inbound or outbound on vessels, propelled in
whole or in part by their own power, than the following:
(A) Between Astoria and Portland or Vancouver, $2.50 per foot
draft and 2 cents per net ton;
(B) Between Astoria or Knappton and the sea, $3 per foot draft
and 2 cents per net ton;
(C) Between Yaquina Bay and the sea, $3 per foot draft and 2
cents per ton; and
(D) Between Coos Bay and the sea, $2.50 per foot draft and 2
cents per ton.
(b) In fixing fees pursuant to paragraph (a) of this
subsection, the board shall give due regard to the following
factors:
Enrolled House Bill 2526 (HB 2526-B) Page 103
(A) The length and net tonnage of the vessels to be piloted.
(B) The difficulty and inconvenience of the particular service
and the skill required to render it.
(C) The supply of and demand for pilotage services.
(D) The public interest in maintaining efficient, economical
and reliable pilotage service.
(E) Other factors relevant to the determination of reasonable
and just rates.
(6) Conduct or authorize the holding of hearings. In so doing
the board or the { - hearings officer - } { + administrative
law judge + } may subpoena witnesses, administer oaths, take
depositions, fix the fees and mileage of witnesses and compel the
attendance of witnesses and the production of papers, books,
accounts, documents and testimony.
(7) Adopt any rule or make any order, as set forth in ORS
183.310 to 183.550, for the effective administration and
enforcement of this chapter.
(8) Establish rates pursuant to subsection (5) of this section
for a period of not less than two years, that continue in effect
until a subsequent hearing process. Rates may include automatic
adjustment provisions to reflect changing economic conditions.
All rates, and adjustments thereto, shall become effective on the
same date specified by the board for all pilotage grounds.
SECTION 111. ORS 825.412 is amended to read:
825.412. (1) When the Department of Transportation receives a
report under ORS 825.410, the department shall notify the person
who is the subject of the report that the person has a right to a
hearing to determine whether the test results reported under ORS
825.410 will be placed on the person's employment driving record.
(2) The notice shall inform the person of the procedure for
requesting a hearing, including but not limited to the time in
which a hearing must be requested and the manner of making the
request.
(3) A hearing under this section shall be limited to the
following issues:
(a) Whether the person named in the report is the person who
took the test.
(b) Whether the motor carrier or consortium has a program that
meets the requirements of ORS 825.410.
(c) Whether the medical review officer making the report
correctly followed the procedures for testing established by the
motor carrier or consortium.
(4) If the { - hearing officer - } { + administrative law
judge + } determines that the person is the person named in the
report, that the motor carrier or consortium has a program
meeting the requirements of ORS 825.410 and that the medical
review officer followed established procedures, the { - hearing
officer - } { + administrative law judge + } shall order the
positive test result to be entered into the employment driving
record of the person.
(5) The department shall adopt rules specifying requirements
for requesting a hearing under this section.
(6) If a hearing is not requested within the time limit
established by rule, or if the person does not appear at a
hearing, the department shall place the information about the
positive test result on the employment driving record of the
person.
(7) The department may not be held civilly liable for any
damage resulting from placing information about a drug test
result on the employment driving record as required by this
Enrolled House Bill 2526 (HB 2526-B) Page 104
section or for any damage resulting from release of the
information by the department that occurs in the normal course of
business.
{ +
APPLICABILITY + }
SECTION 112. { + (1) The amendments to section 4, chapter 849,
Oregon Laws 1999, by section 3 of this 2003 Act apply to all
chief administrative law judges, whether employed before, on or
after the effective date of this 2003 Act.
(2) All references to the Hearing Officer Panel in computer
records and documents of public bodies, as defined by ORS
174.109, shall be construed to be references to the Office of
Administrative Hearings, without regard to whether those records
or documents are created before, on or after the effective date
of this 2003 Act. Subject to availability of funding, public
bodies, as defined by ORS 174.109, shall make such changes in
their computer systems and other document-generating systems as
soon as possible after the effective date of this 2003 Act to
allow references to the Office of Administrative Hearings in lieu
of references to the Hearing Officer Panel.
(3) All references to the hearing officers under chapter 849,
Oregon Laws 1999, in computer records and documents of public
bodies, as defined by ORS 174.109, shall be construed to be
references to the administrative law judges, without regard to
whether those records or documents are created before, on or
after the effective date of this 2003 Act. Subject to
availability of funding, public bodies, as defined by ORS
174.109, shall make such changes in their computer systems and
other document-generating systems as soon as possible after the
effective date of this 2003 Act to allow references to the
administrative law judges in lieu of references to the hearing
officers. + }
{ +
CAPTIONS + }
SECTION 113. { + The unit captions used in this 2003 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2003 Act. + }
{ +
EMERGENCY CLAUSE + }
SECTION 114. { + This 2003 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2003 Act takes effect on
its passage. + }
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Enrolled House Bill 2526 (HB 2526-B) Page 105
Passed by House March 17, 2003
Repassed by House April 21, 2003
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate April 18, 2003
...........................................................
President of Senate
Enrolled House Bill 2526 (HB 2526-B) Page 106
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled House Bill 2526 (HB 2526-B) Page 107