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Oregon Bulletin

March 1, 2011

 

Bureau of Labor and Industries
Chapter 839

Rule Caption: Amendments to correct internal inconsistencies and to set out process for certain types of charges.

Adm. Order No.: BLI 1-2011

Filed with Sec. of State: 1-31-2011

Certified to be Effective: 2-1-11

Notice Publication Date: 12-1-2010

Rules Amended: 839-050-0440, 839-050-0445

Subject: The amendment to OAR 839-050-0445 corrects an incorrect reference to two other division 50 rules The amendment to OAR 839-005-0440 set out the contested case process for Orders of Determination (administrative charges) under ORS 652.332 or Notices of Intent (administrative charges) for civil penalties under ORS 652.710 or 6523.256.

Rules Coordinator: Marcia Ohlemiller—(971) 673-0784

839-050-0440

Contested Case Proceedings based on Orders of Determination and Notices of Intent to Assess Civil Penalties under ORS 652.710 or ORS 653.256

(1) Contested case proceedings based on Orders of Determination under ORS 652.332, Notices of Intent to assess civil penalties under ORS 652.710 or 653.256, or consolidated proceedings based on both types of charging documents are governed by the procedures set forth in OAR chapter 839, division 5O, except to the extent those procedures are modified by this rule.

(2) The discovery provisions of OAR 839-050-0200 do not apply to contested case proceedings based on Orders of Determination under ORS 652.332, Notices of Intent to assess civil penalties under ORS 652.710 or 653.256, or consolidated proceedings based on both types of charging documents except that participants may seek discovery through an informal exchange of information.

(3) Prior to a contested case hearing based on an Order of Determination under ORS 652.332, Notices of Intent to assess civil penalties under ORS 652.710 or 653.256, or consolidated proceedings based on both types of charging documents, the administrative law judge will issue a case summary order as provided in OAR 839-050-0210(1)-(4). OAR 839-050-0210(5) will apply to evidence not disclosed in response to the case summary order.

(4) No amendments will be allowed in contested case proceedings based on Orders of Determination under ORS 652.332, Notices of Intent to assess civil penalties under ORS 652.710 or 653.256, or consolidated proceedings based on both types of charging documents, except that the agency may amend an Order of Determination or Notice of Intent once to correct names of respondents or to add respondents.

Stat. Auth.: ORS 183 & 651.060(4)

Stats. Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850

Hist.: BLI 2-2000, f. & cert. ef. 1-27-00; BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04; BLI 1-2011, f. 1-31-11, cert. ef. 2-1-11

839-050-0445

Hearings on Prevailing Wage Rate Determinations

(1) This rule sets forth the procedures used in contested case hearings requested pursuant to ORS 279C.817(4) and OAR 839-025-0005(7).

(2) Hearings on prevailing wage rate determinations are governed by the procedures set forth in OAR 839-050-0000 to 839-050-0430, except to the extent those procedures are modified by this rule.

(3) The following definitions apply to this rule:

(a) “Aggrieved person” means a person adversely affected or aggrieved by a commissioner’s determination under ORS 279C.817.

(b) “Determination” means a determination issued by the commissioner under the provisions of ORS 279C.817 and OAR 839-025-0005.

(c) “Party” means a requester or aggrieved person who has requested a hearing after the commissioner issues a determination.

(d) “Requester” means a public agency or other interested person who requests a determination under ORS 279C.817 about whether a project or proposed project is or would be a public works on which payment of the prevailing rate of wage is or would be required under 279C.840.

(4) When the commissioner has issued a determination and the requester or aggrieved person requests a hearing, an administrative law judge will be assigned to hear the case and the Hearings Unit will issue a Notice of Hearing to the party that meets the requirements of OAR 839-050-0080(1) and information will be provided under OAR 839-050-0100.

(5) Within ten days after the Notice of Hearing is issued, the administrative law judge will issue an order requiring:

(a) The party to file a written statement identifying all of the party’s reasons for contesting the determination; and

(b) The agency to file copies of all materials provided by the requester under OAR 839-025-0005(1)-(4), a copy of the agency’s determination, and a copy of any other materials the agency relied on to reach its determination. The agency will mark these materials and the agency’s determination for identification in the manner set forth in 839-050-0270.

(6) The statement, materials, and agency determination filed pursuant to section (5) of this rule will be received into the record as exhibits.

(7) Within twenty days prior to hearing, the party and the agency each will file written statements containing the names of all persons they propose to call as witnesses at the hearing, along with a statement of how each person’s testimony will help the administrative law judge understand the materials provided by the requester under OAR 839-025-0005(1)-(4) or the reasons for the agency’s determination.

(8) After reviewing the materials and statements filed pursuant to sections (5) and (7) of this rule, the administrative law judge may issue an interim order finding that the testimony of any proposed witness is irrelevant to the issues at hearing and disallowing the proposed testimony. The administrative law judge may also request that the party or agency bring additional witnesses to the hearing.

(9) Evidence presented at hearing is limited to the exhibits and witness testimony explaining the exhibits and their significance.

(10) At hearing, the party will have an opportunity to explain the reasons that the party contests the determination and the agency will have an opportunity to explain the reasons for its determination.

(11) If the party withdraws its request for hearing or does not appear at the scheduled hearing, the administrative law judge will issue an order canceling the hearing. When a hearing is cancelled based on a party’s failure to appear at the scheduled hearing, the hearing may be rescheduled if the party establishes good cause for its failure to appear within 10 days after the party fails to appear at hearing. The party’s request to reschedule the hearing must be in writing and be accompanied by a written statement, together with appropriate documentation, setting forth facts supporting the claim of good cause.

Stat. Auth.: ORS 183, 651.060(4), 279C.817

Stat. Implemented: ORS 279C.817

Hist.: BLI 25-2008(Temp), f. & cert. ef. 7-29-08 thru 1-23-09; BLI 39-2008, f. & cert. ef. 11-7-08; BLI 1-2011, f. 1-31-11, cert. ef. 2-1-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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