Chapter 115
AN ACT
HB 2121
Relating to rulemaking procedures; amending ORS 183.335.
Be It Enacted by the People of
the State of
SECTION 1. ORS 183.335 is amended to read:
183.335. (1) Prior to the adoption, amendment or repeal of any rule, the
agency shall give notice of its intended action:
(a) In the manner
established by rule adopted by the agency under ORS 183.341 (4), which provides
a reasonable opportunity for interested persons to be notified of the agency’s
proposed action;
(b) In the bulletin
referred to in ORS 183.360 at least 21 days prior to the effective date;
(c) At least 28 days
before the effective date, to persons who have requested notice pursuant to
subsection (8) of this section; and
(d) At least 49 days
before the effective date, to the persons specified in subsection (15) of this
section.
(2)(a) The notice
required by subsection (1) of this section must include:
(A) A caption of not
more than 15 words that reasonably identifies the subject matter of the agency’s
intended action. The agency shall include the caption on each separate notice,
statement, certificate or other similar document related to the intended
action.
(B) An objective, simple
and understandable statement summarizing the subject matter and purpose of the
intended action in sufficient detail to inform a person that the person’s
interests may be affected, and the time, place and manner in which interested
persons may present their views on the intended action.
(b) The agency shall
include with the notice of intended action given under subsection (1) of this
section:
(A) A citation of the
statutory or other legal authority relied upon and bearing upon the
promulgation of the rule;
(B) A citation of the
statute or other law the rule is intended to implement;
(C) A statement of the
need for the rule and a statement of how the rule is intended to meet the need;
(D) A list of the
principal documents, reports or studies, if any, prepared by or relied upon by
the agency in considering the need for and in preparing the rule, and a
statement of the location at which those documents are available for public
inspection. The list may be abbreviated if necessary, and if so abbreviated
there shall be identified the location of a complete list;
(E) A statement of
fiscal impact identifying state agencies, units of local government and the
public which may be economically affected by the adoption, amendment or repeal
of the rule and an estimate of that economic impact on state agencies, units of
local government and the public. In considering the economic effect of the
proposed action on the public, the agency shall utilize available information
to project any significant economic effect of that action on businesses which
shall include a cost of compliance effect on small businesses affected. For an
agency specified in ORS 183.530, the statement of fiscal impact shall also
include a housing cost impact statement as described in ORS 183.534;
(F) If an advisory
committee is not appointed under the provisions of ORS 183.333, an explanation
as to why no advisory committee was used to assist the agency in drafting the
rule; and
(G) A request for public
comment on whether other options should be considered for achieving the rule’s
substantive goals while reducing the negative economic impact of the rule on
business.
(c) The Secretary of
State may omit the information submitted under paragraph (b) of this subsection
from publication in the bulletin referred to in ORS 183.360.
(d) When providing
notice of an intended action under subsection (1)(c)
of this section, the agency shall provide a copy of the rule that the agency
proposes to adopt, amend or repeal, or an explanation of how the person may
acquire a copy of the rule. The copy of an amended rule shall show all changes
to the rule by striking through material to be deleted and underlining all new
material, or by any other method that clearly shows all new and deleted
material.
[(e) Notice of an intended action under subsection (1)(a),
(c) and (d) of this section may be given by regular mail or by electronic mail.]
(3)(a) When an agency
proposes to adopt, amend or repeal a rule, it shall give interested persons
reasonable opportunity to submit data or views. Opportunity for oral hearing
shall be granted upon request received from 10 persons or from an association
having not less than 10 members before the earliest date that the rule could
become effective after the giving of notice pursuant to subsection (1) of this
section. An agency holding a hearing upon a request made under this subsection
shall give notice of the hearing at least 21 days before the hearing to the
person who has requested the hearing, to persons who have requested notice
pursuant to subsection (8) of this section and to the persons specified in
subsection (15) of this section. The agency shall publish notice of the hearing
in the bulletin referred to in ORS 183.360 at least 14 days before the hearing.
The agency shall consider fully any written or oral submission.
(b) If an agency is required
to conduct an oral hearing under paragraph (a) of this subsection, and the rule
for which the hearing is to be conducted applies only to a limited geographical
area within this state, or affects only a limited geographical area within this
state, the hearing shall be conducted within the geographical area at the place
most convenient for the majority of the residents within the geographical area.
At least 14 days before a hearing conducted under this paragraph, the agency
shall publish notice of the hearing in the bulletin referred to in ORS 183.360
and in a newspaper of general circulation published within the geographical
area that is affected by the rule or to which the rule applies. If a newspaper
of general circulation is not published within the geographical area that is
affected by the rule or to which the rule applies, the publication shall be
made in the newspaper of general circulation published closest to the
geographical area.
(c) Notwithstanding
paragraph (a) of this subsection, the Department of Corrections and the State
Board of Parole and Post-Prison Supervision may adopt rules limiting
participation by inmates in the proposed adoption, amendment or repeal of any
rule to written submissions.
(d) If requested by at
least five persons before the earliest date that the rule could become
effective after the agency gives notice pursuant to subsection (1) of this
section, the agency shall provide a statement that identifies the objective of
the rule and a statement of how the agency will subsequently determine whether
the rule is in fact accomplishing that objective.
(e) An agency that
receives data or views concerning proposed rules from interested persons shall
maintain a record of the data or views submitted. The record shall contain:
(A) All written
materials submitted to an agency in response to a notice of intent to adopt,
amend or repeal a rule.
(B) A recording or
summary of oral submissions received at hearings held for the purpose of
receiving those submissions.
(C) Any public comment
received in response to the request made under subsection (2)(b)(G)
of this section and the agency’s response to that comment.
(D) Any statements
provided by the agency under paragraph (d) of this subsection.
(4) Upon request of an
interested person received before the earliest date that the rule could become
effective after the giving of notice pursuant to subsection (1) of this
section, the agency shall postpone the date of its intended action no less than
21 nor more than 90 days in order to allow the requesting person an opportunity
to submit data, views or arguments concerning the proposed action. Nothing in
this subsection shall preclude an agency from adopting a temporary rule
pursuant to subsection (5) of this section.
(5) Notwithstanding subsections
(1) to (4) of this section, an agency may adopt, amend or suspend a rule
without prior notice or hearing or upon any abbreviated notice and hearing that
it finds practicable, if the agency prepares:
(a) A statement of its
findings that its failure to act promptly will result in serious prejudice to
the public interest or the interest of the parties concerned and the specific
reasons for its findings of prejudice;
(b) A citation of the
statutory or other legal authority relied upon and bearing upon the
promulgation of the rule;
(c) A statement of the
need for the rule and a statement of how the rule is intended to meet the need;
(d) A list of the
principal documents, reports or studies, if any, prepared by or relied upon by
the agency in considering the need for and in preparing the rule, and a
statement of the location at which those documents are available for public
inspection; and
(e) For an agency
specified in ORS 183.530, a housing cost impact statement as defined in ORS
183.534.
(6)(a) A rule adopted,
amended or suspended under subsection (5) of this section is temporary and may
be effective for a period of not longer than 180 days. The adoption of a rule
under this subsection does not preclude the subsequent adoption of an identical
rule under subsections (1) to (4) of this section.
(b) A rule temporarily
suspended shall regain effectiveness upon expiration of the temporary period of
suspension unless the rule is repealed under subsections (1) to (4) of this
section.
(7) Notwithstanding subsections
(1) to (4) of this section, an agency may amend a rule without prior notice or
hearing if the amendment is solely for the purpose of:
(a) Changing the name of
an agency by reason of a name change prescribed by law;
(b) Correcting spelling;
(c) Correcting
grammatical mistakes in a manner that does not alter the scope, application or
meaning of the rule; [or]
(d)
Correcting statutory or rule references; or
(e) Correcting addresses
or telephone numbers referred to in the rules.
[(8) Any person may request in writing that an
agency send to the person copies of its notices of intended action given
pursuant to subsection (1) of this section. The person must provide a mailing
address or electronic mail address. Upon receipt of any request the agency
shall acknowledge the request, establish a mailing list and maintain a record
of all mailings made pursuant to the request. Agencies may establish procedures
for establishing and maintaining the mailing lists current and, by rule,
establish fees necessary to defray the costs of mailings and maintenance of the
lists.]
(8)(a) Any person may
request in writing that an agency send to the person copies of the agency’s
notices of intended action issued under subsection (1) of this section. The
person must provide an address where the person elects to receive notices. The
address provided may be a postal mailing address or, if the agency provides
notice by electronic mail, may be an electronic mailing address.
(b) A request under this
subsection must indicate that the person requests one of the following:
(A) The person may
request that the agency mail paper copies of the proposed rule and other
information required by subsection (2) of this section to the postal mailing
address.
(B) If the agency posts
notices of intended action on a website, the person may request that the agency
mail the information required by subsection (2)(a) of
this section to the postal mailing address with a reference to the website
where electronic copies of the proposed rule and other information required by
subsection (2) of this section are posted.
(C) If the agency
provides notice by electronic mail, the person may request that the agency
electronically mail the information required by subsection (2)(a)
of this section to the electronic mailing address, and either provide
electronic copies of the proposed rule and other information required by
subsection (2) of this section or provide a reference to a website where
electronic copies of the proposed rule and other information required by
subsection (2) of this section are posted.
(c) Upon receipt of any
request under this subsection, the agency shall acknowledge the request,
establish a mailing list and maintain a record of all mailings made pursuant to
the request. Agencies may establish procedures for establishing the mailing
lists and keeping the mailing lists current. Agencies by rule may establish
fees necessary to defray the costs of mailings and maintenance of the lists.
(9) This section does
not apply to rules establishing an effective date for a previously effective
rule or establishing a period during which a provision of a previously
effective rule will apply.
(10) This section does
not apply to ORS 279.835 to 279.855, 279A.140 to 279A.155, 279A.250 to
279A.290, 279A.990, 279B.050 to 279B.085, 279B.200 to 279B.240, 279B.270,
279B.275, 279B.280, 279C.360, 279C.365, 279C.370, 279C.375, 279C.380, 279C.385,
279C.500 to 279C.530, 279C.540, 279C.545, 279C.550 to 279C.570, 279C.580,
279C.585, 279C.590, 279C.600 to 279C.625, 279C.650 to 279C.670 and 279C.800 to
279C.870 relating to public contracts and purchasing.
(11)(a) Except as
provided in paragraph (c) of this subsection, a rule is not valid unless
adopted in substantial compliance with the provisions of this section in effect
on the date that the notice required under subsection (1) of this section is
delivered to the Secretary of State for the purpose of publication in the
bulletin referred to in ORS 183.360.
(b) In addition to all
other requirements with which rule adoptions must comply, a rule is not valid
if the rule has not been submitted to the Legislative Counsel in the manner
required by ORS 183.715.
(c) A rule is not
subject to judicial review or other challenge by reason of failing to comply
with subsection (2)(a)(A) of this section.
(12)(a) Notwithstanding
the provisions of subsection (11) of this section, but subject to paragraph (b)
of this subsection, an agency may correct its failure to substantially comply
with the requirements of subsections (2) and (5) of this section in adoption of
a rule by an amended filing, as long as the noncompliance did not substantially
prejudice the interests of persons to be affected by the rule.
(b) An agency may use an
amended filing to correct a failure to include a fiscal impact statement in a
notice of intended action, as required by subsection (2)(b)(E)
of this section, or to correct an inaccurate fiscal impact statement, only if
the agency developed the fiscal impact statement with the assistance of an
advisory committee or fiscal impact advisory committee appointed under ORS
183.333.
(13) Unless otherwise
provided by statute, the adoption, amendment or repeal of a rule by an agency
need not be based upon or supported by an evidentiary record.
(14) When an agency has
established a deadline for comment on a proposed rule under the provisions of
subsection (3)(a) of this section, the agency may not
extend that deadline for another agency or person unless the extension applies
equally to all interested agencies and persons. An agency shall not consider
any submission made by another agency after the final deadline has passed.
(15) The notices
required under subsections (1) and (3) of this section must be given by the
agency to the following persons:
(a) If the proposed
adoption, amendment or repeal results from legislation that was passed within
two years before notice is given under subsection (1) of this section, notice
shall be given to the legislator who introduced the bill that subsequently was
enacted into law, and to the chair or cochairs of all committees that reported
the bill out, except for those committees whose sole action on the bill was
referral to another committee.
(b) If the proposed
adoption, amendment or repeal does not result from legislation that was passed
within two years before notice is given under subsection (1) of this section,
notice shall be given to the chair or cochairs of any interim or session
committee with authority over the subject matter of the rule.
(c) If notice cannot be
given under paragraph (a) or (b) of this subsection, notice shall be given to
the Speaker of the House of Representatives and to the President of the Senate
who are in office on the date the notice is given.
(16)(a) Upon the request
of a member of the Legislative Assembly or of a person who would be affected by
a proposed adoption, amendment or repeal, the committees receiving notice under
subsection (15) of this section shall review the proposed adoption, amendment
or repeal for compliance with the legislation from which the proposed adoption,
amendment or repeal results.
(b) The committees shall
submit their comments on the proposed adoption, amendment or repeal to the
agency proposing the adoption, amendment or repeal.
Approved by the Governor May 9, 2007
Filed in the office of Secretary of State May 10, 2007
Effective date January 1, 2008
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