69th OREGON LEGISLATIVE ASSEMBLY--1997 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1625
B-Engrossed
House Bill 2320
Ordered by the Senate June 19
Including House Amendments dated May 23 and Senate Amendments
dated June 19
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Department of Justice)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Deletes requirement that Attorney General approve agency notice
rules.
Specifies procedure to dispose of contested cases informally.
Revises agency authority to issue subpoenas.
Specifies agency authority to adopt all or part of model
alternative dispute resolution rules.
{ + Establishes rebuttable presumption in favor of issuing
illness waiver to eligibility requirements for participating in
Dungeness crab fishing for vessels owned by disabled veteran.
Allows waiver for one of two seasons of required crab landing.
Declares emergency, effective on passage. + }
A BILL FOR AN ACT
Relating to administrative procedures; creating new provisions;
amending ORS 183.341, 183.415, 183.425, 183.440, 183.445,
183.480, 183.502 and 508.941; repealing sections 27, 28 and 29,
chapter ___ , Oregon Laws 1997 (Enrolled House Bill 2948); and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 183.341 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.
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) All agencies shall adopt rules of procedure to be utilized
in the adoption of rules and conduct of proceedings in 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.
{ - Rules adopted or amended under this subsection shall be
approved by the Attorney General. - }
(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 2. ORS 183.415 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
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.
(10) The officer presiding at the hearing shall insure 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 hearings officer.
(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 3. ORS 183.440 is amended to read:
183.440. (1) { - The agency shall issue subpoenas to any
party to a contested case upon request upon a showing of general
relevance and reasonable scope of the evidence sought. - }
{ + An agency may issue subpoenas on its own motion in a
contested case. In addition, an agency may issue subpoenas upon
the request of a party to a contested case upon a showing of
general relevance and reasonable scope of the evidence
sought. + } A party, other than the agency, entitled to have
witnesses on behalf of the party may have subpoenas issued by an
attorney of record of the party, subscribed by the signature of
the attorney. Witnesses appearing pursuant to subpoena, other
than the parties or officers or employees of the agency, shall
receive fees and mileage as prescribed by law for witnesses in
ORS 44.415 (2).
(2) If any person fails to comply with any subpoena so issued
or any party or witness refuses to testify on any matters on
which the party or witness may be lawfully interrogated, the
judge of the circuit court of any county, on the application of
the agency or of a designated representative of the agency or of
the party requesting the issuance of or issuing the subpoena,
shall compel obedience by proceedings for contempt as in the case
of disobedience of the requirements of a subpoena issued from
such court or a refusal to testify therein.
SECTION 3a. If House Bill 2948 becomes law, section 28, chapter
___, Oregon Laws 1997 (Enrolled House Bill 2948) (amending ORS
183.440), is repealed and ORS 183.440, as amended by section 3 of
this Act, is amended to read:
183.440. (1) { - An agency - } { + The hearing officer + }
may issue subpoenas { + and subpoenas duces tecum + } on
{ - its - } { + the hearing officer's + } own motion in a
contested case. In addition, { - an agency - } { + the
hearing officer + } may issue subpoenas { + and subpoenas duces
tecum + } upon the request of a party to a contested case upon a
showing of general relevance and reasonable scope of the evidence
sought. A party { - , other than the agency, - } entitled to
have witnesses on behalf of the party may have subpoenas issued
by an attorney of record of the party, subscribed by the
signature of the attorney. Witnesses appearing pursuant to
subpoena, other than the parties or officers or employees of the
agency, shall receive fees and mileage as prescribed by law for
witnesses in ORS 44.415 (2).
(2) If any person fails to comply with any subpoena so issued
or any party or witness refuses to testify on any matters on
which the party or witness may be lawfully interrogated, the
judge of the circuit court of any county, on the application of
the { - agency or of a designated representative of the
agency - } { + hearing officer + } or of the party requesting
the issuance of or issuing the subpoena, shall compel obedience
by proceedings for contempt as in the case of disobedience of the
requirements of a subpoena issued from such court or a refusal to
testify therein.
SECTION 4. ORS 183.445 is amended to read:
183.445. { + (1) + } In any proceeding before an agency not
subject to ORS 183.440 in which a party, other than the agency,
is entitled to have subpoenas issued by the agency for the
appearance of witnesses on behalf of the party, a subpoena may be
issued by an attorney of record of the party, subscribed by the
signature of the attorney. A subpoena issued by an attorney of
record may be enforced in the same manner as a subpoena issued by
the agency.
{ + (2) In any proceeding before an agency not subject to ORS
183.440 in which a party other than the agency is entitled to
have subpoenas issued by the agency to compel the appearance of
witnesses on behalf of the party, the agency may issue subpoenas
on its own motion. + }
SECTION 4a. If House Bill 2948 becomes law, section 29, chapter
___, Oregon Laws 1997 (Enrolled House Bill 2948) (amending ORS
183.445), is repealed and ORS 183.445, as amended by section 4 of
this Act, is amended to read:
183.445. (1) In any proceeding before an agency not subject to
ORS 183.440 in which a party { - , other than the agency, - }
is entitled to have subpoenas issued by the { - agency - }
{ + hearing officer + } for the appearance of witnesses on
behalf of the party, a subpoena may be issued by an attorney of
record of the party, subscribed by the signature of the attorney.
A subpoena issued by an attorney of record may be enforced in the
same manner as a subpoena issued by the { - agency - } { +
hearing officer + }.
(2) In any proceeding before an agency not subject to ORS
183.440 in which a party { - other than the agency - } is
entitled to have subpoenas issued by the { - agency - } { +
hearing officer + } to compel the appearance of witnesses on
behalf of the party, the { - agency - } { + hearing
officer + } may issue subpoenas on { - its - } { + the
hearing officer's + } own motion.
SECTION 5. ORS 183.480 is amended to read:
183.480. (1) { + Except as provided in ORS 183.415 (5)(b), + }
any person adversely affected or aggrieved by an order or any
party to an agency proceeding is entitled to judicial review of a
final order, whether such order is affirmative or negative in
form. A petition for rehearing or reconsideration need not be
filed as a condition of judicial review unless specifically
otherwise provided by statute or agency rule.
(2) Judicial review of final orders of agencies shall be solely
as provided by ORS 183.482, 183.484, 183.490 and 183.500.
(3) No action or suit shall be maintained as to the validity of
any agency order except a final order as provided in this section
and ORS 183.482, 183.484, 183.490 and 183.500 or except upon
showing that the agency is proceeding without probable cause, or
that the party will suffer substantial and irreparable harm if
interlocutory relief is not granted.
(4) Judicial review of orders issued pursuant to ORS 813.410
shall be as provided by ORS 813.410.
SECTION 6. ORS 183.425 is amended to read:
183.425. (1) On petition of any party to a contested case,
{ + or upon the agency's own motion, + } the agency may order
that the testimony of any material witness may be taken by
deposition in the manner prescribed by law for depositions in
civil actions. Depositions may also be taken by the use of audio
or audio-visual recordings. The petition shall set forth the name
and address of the witness whose testimony is desired, a showing
of the materiality of the testimony of the witness, and a request
for an order that the testimony of such witness be taken before
an officer named in the petition for that purpose. If the witness
resides in this state and is unwilling to appear, the agency may
issue a subpoena as provided in ORS 183.440, requiring the
appearance of the witness before such officer.
(2) An agency may, by rule, prescribe other methods of
discovery which may be used in proceedings before the agency.
SECTION 6a. If House Bill 2948 becomes law, section 27, chapter
___, Oregon Laws 1997 (Enrolled House Bill 2948) (amending ORS
183.425), is repealed and ORS 183.425, as amended by section 6 of
this Act, is amended to read:
183.425. (1) On petition of any party to a contested case, or
upon the { - agency's - } { + hearing officer's + } own
motion, the { - agency - } { + hearing officer + } may order
that the testimony of any material witness may be taken by
deposition in the manner prescribed by law for depositions in
civil actions. Depositions may also be taken by the use of audio
or audio-visual recordings. The petition shall set forth the name
and address of the witness whose testimony is desired, a showing
of the materiality of the testimony of the witness, and a request
for an order that the testimony of such witness be taken before
an officer named in the petition for that purpose. If the witness
resides in this state and is unwilling to appear, the
{ - agency - } { + hearing officer + } may issue a subpoena as
provided in ORS 183.440, requiring the appearance of the witness
before such officer.
{ - (2) An agency may, by rule, prescribe other methods of
discovery which may be used in proceedings before the agency. - }
{ + (2) The hearing officer, at the request of any party or
upon the hearing officer's own motion, may issue protective
orders and orders for discovery in accordance with the rules
applicable to the hearing. + }
SECTION 7. ORS 183.502 is amended to read:
183.502. (1) Unless otherwise prohibited by law, agencies may
use alternative means of dispute resolution in rulemaking
proceedings, contested case proceedings, judicial proceedings in
which the agency is a party, and any other decision-making
process in which conflicts may arise. The alternative means of
dispute resolution may be arbitration, mediation or any other
collaborative problem-solving process designed to encourage
parties to work together to develop mutually agreeable solutions
to disputes. Use of alternative means of dispute resolution by an
agency does not affect the application of ORS 192.410 to 192.505
to the agency, or the application of ORS 192.610 to 192.690 to
the agency.
(2) An agency that elects to utilize alternative means of
dispute resolution shall inform and may consult with the Dispute
Resolution Commission and the Department of Justice in developing
a policy for implementation of alternative means of dispute
resolution. Two or more agencies may cooperate for the purpose of
offering alternative means of dispute resolution, and may
designate a coordinating agency for such cooperative program.
(3) The Attorney General, in consultation with the Dispute
Resolution Commission and the Oregon Department of Administrative
Services, may develop for agencies { - a - } model
{ - rule - } { + rules + } for the implementation of
alternative means of dispute resolution. { + An agency may adopt
all or part of the model rules by reference without complying
with the rulemaking procedures of ORS 183.325 to 183.410. Notice
of the adoption of all or part of the model rules must be filed
by the agency with the Secretary of State in the manner provided
by ORS 183.355 for the filing of rules. + }
(4) When an agency reviews the standard agreements, forms for
contracts and forms for applying for grants or other assistance
used by the agency, the agency shall determine whether the
agreements and forms should be amended to authorize and encourage
the use of alternative means of dispute resolution in disputes
that arise under the agreement, contract or application.
(5) The Department of Justice, the Dispute Resolution
Commission, the Oregon Department of Administrative Services and
any participating or coordinating agency shall collaborate to
expand the services offered in existing agency dispute resolution
programs, design and implement additional pilot projects to
increase the use of alternative dispute resolution to resolve
disputes involving the State of Oregon and develop a method to
evaluate the effectiveness of such programs. The participating
agencies shall seek to identify cases appropriate for mediation
and other means of dispute resolution and to design systems and
procedures to resolve those cases. The purpose of the additional
pilot projects is to:
(a) Increase agency efficiency;
(b) Increase public and agency satisfaction with the results of
dispute resolution; and
(c) Decrease the state's litigation costs.
(6) The Department of Justice, the Dispute Resolution
Commission and the Oregon Department of Administrative Services
shall report to the Legislative Assembly on or before January 15
of each odd-numbered year regarding any additional projects
implemented under subsection (5) of this section.
SECTION 8. { + (1) The amendments to ORS 183.341 and 183.502
by sections 1 and 7 of this Act apply only to rules adopted on or
after the effective date of this Act.
(2) The amendments to ORS 183.415 and 183.480 by sections 2 and
5 of this Act apply to all contested case proceedings, whether
commenced before, on or after the effective date of this Act. + }
SECTION 9. ORS 508.941 is amended to read:
508.941. (1) The system established under ORS 508.921 shall
include any other provisions for participation that the State
Fish and Wildlife Commission considers appropriate.
(2) Any determination by the commission regarding the
eligibility of a vessel to participate in the ocean Dungeness
crab commercial fishery or to transfer participation rights is
subject to review by the Commercial Fishery Permit Board, in
accordance with ORS 183.310 to 183.550. The board may waive the
eligibility requirements contained in ORS 508.931 if the board
finds that the individual fails to meet the requirements as the
result of illness, fire, sinking, accident or other circumstances
beyond the individual's control. In making a determination of
eligibility under this section, the board shall consider the
applicant's history of participation in the Oregon ocean
Dungeness crab fishery. { + If a vessel for which application is
made is owned by a person who has served in the Armed Forces of
the United States and the person establishes that a
service-related disability prevented the person from lawfully
landing crab in two seasons during the prescribed time period,
there is a rebuttable presumption in favor of issuing an illness
waiver for one of the two seasons of lawfully landing crab in
Oregon required under ORS 508.931 so as to require the landing of
crab in only one season during the prescribed time period. The
rebuttable presumption created by this subsection may be overcome
only by clear and convincing evidence that the service-related
disability of the person did not prevent the person from lawfully
landing crab in two seasons during the prescribed time
period. + } Orders issued by the board are not subject to review
by the commission, but may be appealed as provided in ORS 183.480
to 183.550.
(3) A commercial fishing vessel that holds a valid Washington
or California permit to fish for ocean Dungeness crab shall be
eligible to participate in the Oregon ocean Dungeness crab
fishery provided there is reciprocal statutory authority in
Washington or California that provides for equal access for
vessels holding Oregon ocean Dungeness crab permits to Washington
or California coastal waters and Washington waters of the
Columbia River. If such reciprocal statutory authority exists, a
vessel licensed by Washington or California is eligible to
participate in accordance with rules that establish reciprocal
border agreements that recognize traditional fishing patterns.
(4) The annual fee to participate in the ocean Dungeness crab
fishery is $75, except that the fee for 1995 is waived.
SECTION 10. { + The amendments to ORS 508.941 by section 9 of
this Act apply to an application for a permit made before the
effective date of this Act if a final administrative and judicial
determination has not been made on the application as of the
effective date of this Act. + }
SECTION 11. { + This Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this Act takes effect on its
passage. + }
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