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COLUMBIA RIVER GORGE COMMISSION

 

DIVISION 16

ADMINISTRATIVE PROCEDURES

 

 

350-016-0001

Commission Required to Prepare Public Writings in Readable Form

(1) The commission shall when reasonable prepare its public writings in simple language with short, precise, affirmative, active-voice sentences.

(2) As used in this section, "public writing" means any rule, form, license or notice prepared by the commission.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0002

Definitions for 350-016-0002 to 350-016-0018

(1) "Commission" means the Columbia River Gorge Commission or any officer authorized by the commission to make rules or to issue orders.

(2)(a) "Contested case" means a proceeding before the commission:

(A) In which the individual legal rights, duties or privileges of specific parties are required by statute or Constitution to be determined only after a hearing at which such specific parties are entitled to appear and to be heard:

(B) Where the commission 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.

(b) "Contested case" does not include proceedings in which any commission decision rests solely on the result of a test.

(3) "Economic effect" means the costs of compliance with a rule for businesses including but not limited to the costs of equipment, supplies, labor and administration.

(4) "License" includes the whole or part of any commission permit, certificate, approval, registration or similar form of permission required by law to pursue any commercial activity, trade, occupation or profession.

(5)(a) "Order" means any commission action expressed orally or in writing directed to a named person or named persons, other than employees, officers or members of the commission. "Order" includes any commission determination or decisions issued in connection with a contested case proceeding.

(b) "Final order" means final commission action expressed in writing. "Final order" does not include any tentative or preliminary commission declaration or statement that:

(A) Precedes final commission action; or

(B) Does not preclude further commission consideration of the subject matter of the statement or declaration.

(6) "Party" means:

(a) Each person or agency entitled as of right to a hearing before the commission;

(b) Each person or agency named by the commission to be a party; or

(c) Any person requesting to participate before the commission as a party or in a limited party status which the commission determines either has an interest in the outcome of the commission's proceeding or represents a public interest in such result.

(7) "Person" means any individual, partnership, corporation, association, governmental subdivision or public or private organization of any character other than the commission.

(8) "Rule" means any commission directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of the commission. 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 the commission, between its officers or between employees.

(b) Action by commission directed to other agencies or other units of government which do not substantially affect the interests of the public.

(c) Declaratory rulings.

(d) Intra-agency memoranda.

(9) "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 which has 50 or fewer employees.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0003

Description of Organization; Service of Order; Effect of Not Putting Order in Writing

(1) In addition to other rulemaking requirements imposed by law, the commission shall publish a description of its organization and the methods whereby the public may obtain information or make submissions or requests.

(2) The commission shall appoint a rules coordinator and file a copy of that appointment annually with the Oregon Secretary of State and Washington Code Reviser. The rules coordinator shall:

(a) Maintain copies of all rules adopted by the agency and be able to provide information to the public about the status of those rules;

(b) Provide information to the public on all rulemaking proceedings of the agency; and

(c) Keep and make available the mailing list required by 350-016-0004(7).

(3) An order shall not be effective as to a person or party unless it is served upon him either personally or by mail. This subsection is not applicable in favor of any person or party who has actual knowledge of the order.

(4) An order is not final until it is reduced to writing.

Stat. Auth.: ORS 197.150 & RCW 43.97
Stats. Implemented: ORS 197.150, RCW 43.97 & 16 U.S.C. 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90; CRGC 1-2002, f. 10-16-02 cert. ef. 12-2-02

350-016-0004

Notice Requirements for Rule Adoption; Temporary Rule Adoption, or Amendment; Substantial Compliance Required

(1) The commission shall prepare a semiannual agenda for rules under development. The commission shall file the agenda with the Oregon Secretary of State and Washington Code Reviser for publication in the states' registers not later than January 31st and July 31st of each year. Not later than three days after its publication in the states' registers, the commission shall send a copy of the agenda to each person who has requested receipt of a copy of the agenda.

(2) When applicable under Washington law, the commission shall prepare a statement of inquiry on the form provided by the Washington Code Reviser, that shall be: filed with the Washington Code Reviser for publication in the state's register at least thirty days before the date the agency files notice of proposed rule making, sent to any party that has requested receipt of the agency's statements of inquiry, and published on the Commission's website or other similar means of electronic communication.

(3) Prior to the adoption, amendment or repeal of any rule, the commission shall give notice of its intended action:

(a) In the manner established by rule adopted by the commission, which provides a reasonable opportunity for interested persons to be notified of the agency's proposed action;

(b) In the Oregon bulletin and Washington register at least 21 days prior to the commencement of any commission action;

(c) At least 28 days before the effective date, to persons who have requested notice pursuant to subsection (9) of this section; and

(d) On its website or other similar means of electronic communication.

(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.

(4)(a) The notice required by subsection (3) of this section shall state the subject matter and purpose of the intended action in sufficient detail to inform a person that the person's interests may be affected, and the time, place and manner in which interested persons may present their views on the intended action.

(b) The commission shall include with the notice of intended action given under subsection (3) 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 statement of the need for the rule and a statement of how the rule is intended to meet the need;

(C) A list of the principal documents, reports or studies, if any, prepared by or relied upon by the commission 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;

(D) 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;

(E) A statement of the anticipated effects of the proposed rule;

(F) A statement whether the rule is necessary as a result of federal law or a court decision;

(G) An indication of the person or persons proposing the rule;

(H) The date on which the commission intends to adopt the rule; and

(I) The commission personnel responsible for implementation and enforcement of the rule, with office location and telephone number;

(J) If an advisory committee is not appointed, or an opportunity for interested parties to participate in the rule-making process prior to publication of the proposed rule has not been provided, an explanation as to why no advisory committee or participation by interested persons was used to assist the agency in drafting the rule.

(5) When the commission proposes to adopt, amend or repeal a rule, it shall give interested persons reasonable opportunity to submit data or views at a public hearing. The commission shall consider fully any written or oral submissions, including all submissions received by facsimile, telephonic communication, or electronic mail.

(6) Upon request of an interested person received within 15 days after commission notice pursuant to subsection (2) of this section, the commission 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 the commission from adopting a temporary rule pursuant to subsection (7) of this section.

(7) Notwithstanding subsections (1) to (6) of this section, the commission may adopt or amend a rule without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable, if the commission prepares:

(a) A statement of its findings that its failure to act promptly will result in serious prejudice to the public interest or the interests of the parties concerned and the specific reasons of 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; and

(d) A list of the principal documents, reports or studies, if any, prepared by or relied upon by the commission in considering the need for and in preparing the rule, and a statement of the location at which those documents are available for public inspections.

(8) A rule adopted or amended under subsection (7) of this section is temporary and may be effective for a period of not longer than 120 days. The adoption of a rule under this subsection does not preclude the subsequent adoption of an identical rule under subsections (1) to (6) of this section.

(9) Any person may request in writing that the commission mail to the person copies of its notice of intended action given pursuant to subsection (3) of this section. Upon receipt of any request the commission shall acknowledge the request, establish a mailing list and maintain a record of all mailings made pursuant to the request. The commission 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.

(10) This section does not apply to public contracts and purchasing.

(11) 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 3 of this section is delivered to the Oregon Secretary of State and the Washington Code Reviser for the purpose of publication.

(12) Unless otherwise provided by statute, the adoption, amendment or repeal of a rule by an agency need not be based upon or supported by an evidentiary record.

(13) The commission may correct its failure to substantially comply with the requirements of subsections (4) and (7) of this section in adoption of a rule by an amended filing, so long as the noncompliance did not substantially prejudice the interests of persons to be affected by the rule. However, this subsection does not authorize correction of a failure to comply with subsection (3)(b)(D) of this section requiring inclusion of a fiscal impact statement with the notice required by subsection (1) of this section.

(14) When the commission establishes a deadline for comment on a proposed rule under the provisions of subsection (4) of this section, the commission 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.

Stat. Auth.: ORS 197.150 & RCW 43.97
Stats. Implemented: ORS 197.150, RCW 43.97 & 16 U.S.C. 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90; CRGC 1-2002, f. 10-16-02 cert. ef. 12-2-02; CRGC 1-2006, f. 3-22-06, cert. ef. 5-1-06

350-016-0005

Procedure for Commission Adoption of Federal Rules

(1) Notwithstanding 350-016-0004, when the commission is required to adopt rules or regulations promulgated by an agency of the Federal Government and the Agency has no authority to alter or amend the content or language of those rules or regulations prior to their adoption, the agency may adopt those rules or regulations under the procedure prescribed in this section.

(2) Prior to the adoption of a federal rule or regulation under subsection (1) of this section, the commission shall give notice of the adoption of the rule or regulation, the effective date of the rule or regulation and the subject matter of the rule or regulation in the manner established in 350-016-0004(1).

(3) After giving notice the commission may add to the rule or regulation by filing a copy with the Oregon Secretary of State and the Washington Code Reviser. The commission is not required to conduct public hearings concerning the adoption of the rule or regulation.

(4) Nothing in this section authorizes the commission to amend federal rules ore regulations or adopt rules in accordance with federal requirements without giving an opportunity for hearings as required by 350-016-0004.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0006

Filing and Taking Effect of Rules; Copies

(1)(a) The commission shall file in the office of the Oregon Secretary of State and Washington Code Reviser a certified copy of each rule adopted by it.

(b) Notwithstanding the provisions of paragraph (a) of this subsection, the commission adopting a rule incorporating published standards of reference is not required to file a copy of those standards with the Oregon Secretary of State or the Washington Code Reviser if:

(A) The standards adopted are unusually voluminous and costly to reproduce; and

(B) The rule identifies the location of the standards to be incorporated and the conditions of their availability to the public.

(2) Each rule is effective upon the expiration of 30 days after the date of filing as required by subsection (1) of this section, except that:

(a) If a later effective date is required by constitution, statute or court order, the later date is the effective date.

(b) If a different effective date is specified in the rule and the commission finds that action is necessary because of imminent peril to public health, safety or welfare, the specified date is the effective date.

(c) A temporary rule becomes effective upon filing with the Oregon Secretary of State and Washington Code Reviser, or at a designated later date, only if the statement required by 350-016-0004(5) is filed with the rule. The commission shall take appropriate measures to make temporary rules known to the persons who may be affected by them.

(3) When a rule is amended or repealed by the commission, the commission shall file a certified copy of the amendment or notice of repeal with the Oregon Secretary of State and Washington Code Reviser.

(4) No rule of which a certified copy if required to be filed shall be valid or effective against any person or party until a certified copy is filed in accordance with this section. However, if the commission, in disposing of a contested case, announces in its decision the adoption of a general policy applicable to such case and subsequent cases of like nature the commission may rely upon such decision in disposition of later cases.

Stat. Auth.: ORS 197.150 & RCW 43.97
Stats. Implemented: ORS 197.150, RCW 43.97 & 16 U.S.C. 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90; CRGC 1-2002, f. 10-16-02 cert. ef. 12-2-02

350-016-0007

Petitions Requesting Adoption of Rules

An interested person may petition the commission requesting the promulgation, amendment or repeal of a rule. The commission shall prescribe by rule the form for such petitions and the procedure for their submission, consideration and disposition. Not later than 30 days after the date of submission of a petition, the commission shall deny the petition in writing or shall initiate the rulemaking proceedings. If the commission denies the petition it shall set forth in writing its reasons for doing so.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0008

Notice to Party Before Hearing of Rights and Procedure; Legislative Findings; Failure to Provide Notice

(1) Citizens have a right to be informed as to the procedures by which contested cases are heard by the commission, their rights in hearings before the commission, the import and effect of hearings before the commission and their rights and remedies with respect to actions taken by the commission. Accordingly, it is the purpose of subsections (2) to (4) of this section to set forth certain requirements of the commission so that citizens shall be fully informed as to these matters when exercising their rights before the commission.

(2) Prior to the commencement of a contested case hearing before the commission, the commission shall inform each party to the hearing of the following matters:

(a) If a party is not represented by an attorney, a general description of the hearing procedure including the order of presentation of evidence, what kinds of evidence are admissible, whether objections may be made to the introduction of evidence and what kind of objections may be made and an explanation of the burdens of proof or burdens of going forward with the evidence.

(b) The manner of making the record and its availability to the parties.

(c) The function of the record-making with respect to the perpetuation of the testimony and evidence and with respect to any appeal from the determination or order of the commission.

(d) Whether an attorney will represent the commission in the matters to be heard and whether the parties ordinarily and customarily are represented by an attorney.

(e) The title and function of the person presiding at the hearing with respect to the decision process, including, but not limited to, the manner in which the testimony and evidence taken by the person presiding at the hearing are reviewed, the effect of that person's determination, whether the person presiding at the hearing is or is not an employee, officer or other representative of the commission and whether that person has the authority to make a final independent determination.

(f) In the event a party is not represented by an attorney, whether the party may during the course of proceedings request a recess if at that point the party determines that representation by an attorney is necessary to the protection of the party's rights.

(g) Whether there exists an opportunity for an adjournment at the end of the hearing if the party then determines that additional evidence should be brought to the attention of the commission and the hearing reopened.

(h) Whether there exists an opportunity after the hearing and prior to the final determination or order of the commission to review and object to any proposed findings of fact, conclusions of law, summary of evidence or recommendations of conclusions of law, summary of evidence or recommendations of the officer presiding at the hearing.

(i) A description of the appeal process from the determination or order of the commission.

(3) The information required to be given to a party to a hearing under subsections (2) and (3) of this section may be given in writing or orally before commencement of the hearing.

(4) The failure of the commission to give notice of any item specified in subsections (2) and (3) of this section, shall not invalidate any determination or order of the commission unless upon an appeal from or review of the determination or order a court finds that the failure affects the substantial rights of the complaining party. In the event of such a finding, the court shall remand the matter to the commission for a reopening of the hearing and shall direct the commission as to what steps it shall take to remedy the prejudice to the rights of the complaining party.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0009

Notice, Hearing and Record in Contested Cases; Informal Dispositions; Hearings Officer

(1) In a contested case hearing, all parties shall be afforded an opportunity for hearing after notice of not less than 20 days, served personally or by registered or certified mail.

(2) The notice shall include:

(a) A statement of the party's right to hearing, with a description of the procedure and time to request a 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;

(d) A short and plain statement of the matters asserted or charged, and identifying the issues to be considered at the hearing;

(e) A statement indicating whether and under what circumstances an order by default may be entered;

(f) A statement that a party may be represented by counsel and that legal aid organizations may be able to assist a party with limited financial resources;

(g) A statement that the party has the right to respond to all issues properly before the presiding officer and present evidence and witnesses on those issues as allowed by the applicable rules under which the hearing is held.

(h) A statement indicating whether discovery is permitted and, if so, how discovery may be requested.

(i) A general description of the hearing procedure including the order of presentation of evidence, what kinds of evidence are admissible, whether objections may be made to the introduction of evidence and what kind of objections may be made and an explanation of the burdens of proof or burdens of going forward with the evidence.

(j) Whether a record will be made of the proceedings and the manner of making the record and its availability to the parties.

(k) The function of the record-making with respect to the perpetuation of the testimony and evidence and with respect to any appeal from the determination or order of the agency.

(l) Whether an attorney will represent the agency in the matters to be heard and whether the parties ordinarily and customarily are represented by an attorney.

(m) The title and function of the person presiding at the hearing with respect to the decision process, including, but not limited to, the manner in which the testimony and evidence taken by the person presiding at the hearing are reviewed, the effect of that person's determination, who makes the final determination on behalf of the agency, whether the person presiding at the hearing is or is not an employee, officer or other representative of the agency and whether that person has the authority to make a final independent determination.

(n) In the event a party is not represented by an attorney, whether the party may during the course of proceedings request a recess if at that point the party determines that representation by an attorney is necessary to the protection of the party's rights.

(o) Whether there exists an opportunity for an adjournment at the end of the hearing if the party then determines that additional evidence should be brought to the attention of the agency and the hearing reopened.

(p) Whether there exists an opportunity after the hearing and prior to the final determination or order of the agency to review and object to any proposed findings of fact, conclusions of law, summary of evidence or recommendations of the officer presiding at the hearing.

(q) A description of the appeal process from the determination or order of the agency.

(r) Unless otherwise ordered by the presiding officer, the names and mailing addresses of all parties to whom notice is being given and, if known, the names and addresses of their representatives;

(s) The official file or other reference number and the name of the proceeding;

(t) The name, official title, mailing address, and telephone number of the presiding officer, if known; and

(u) Any other matters considered desirable by the agency.

(3) Parties may elect to be represented by counsel and to respond and present evidence and argument on all issues involved.

(4) The commission may adopt rules of procedure governing participation in contested cases by person appearing as limited parties.

(5) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default.

(6) An order adverse to a party may be issued upon default only upon prima facie case made on the record of the commission. 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 commission may so certify and so notify the party, and such material shall constitute the evidentiary record of the proceeding if hearing is not requested. The commission shall serve a default order upon the defaulted party or the party's attorney, if any.

(7) Within seven days after service of a default order under subsection (6) of this section, the party against whom it was entered may file a written motion requesting that the order be vacated, and stating the grounds relied upon. During the time within which a party may file a written motion under this subsection, the presiding officer may adjourn the proceedings or conduct them without the participation of that party, having due regard for the interests of justice and the orderly and prompt conduct of the proceedings. 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 form when received. The officer presiding at the hearing shall administer oaths or affirmatives to witnesses.

(9) 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 property before the presiding officer in the case and the correct application of law to those facts.

(10) 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 commission or a hearings officer.

(11) 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 commission may charge the party requesting transcription, unless the party files an appropriate affidavit of indigency.

Stat. Auth.: ORS 197.150 & RCW 43.97
Stats. Implemented: ORS 197.150, RCW 43.97 & 16 U.S.C. 544 et seq.
Hist.: CRGC 1-1987(Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90; CRGC 1-2002, f. 10-16-02 cert. ef. 12-2-02; CRGC 1-2008, f. 2-21-08, cert.ef. 4-1-08

350-016-0010

Presiding Officer -- Disqualification, Substitution

(1) Any party may petition for the disqualification of an individual promptly after receipt of notice indicating that the individual will preside or, if later, promptly upon discovering facts establishing grounds for disqualification.

(2) The individual whose disqualification is requested shall determine whether to grant the petition, stating facts and reasons for the determination.

(3) If a substitute is required for an individual who becomes unavailable as a result of disqualification or any other reason, the substitute must be appointed by the commission.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0011

Interpreter for Handicapped Person in Contested Case

(1) When a handicapped person is a party to a contested case, the handicapped person is entitled to a qualified interpreter to interpret the proceedings to the handicapped person and to interpret the testimony of the handicapped person to the commission.

(2)(a) Except as provided in paragraph (b) of this subsection, the commission shall appoint the qualified interpreter for the handicapped person; and the commission shall fix and pay the fees and expenses of the qualified interpreter if:

(A) The handicapped person makes a verified statement and provides the information in writing under oath showing the inability of the handicapped person to obtain a qualified interpreter, and provides any other information required by the commission concerning the inability of the handicapped person to obtain such an interpreter; and

(B) It appears to the commission that the handicapped person is without means and is unable to obtain a qualified interpreter.

(b) If the handicapped person knowingly and voluntarily files with the commission a written statement that the handicapped person does not desire a qualified interpreter to be appointed for the handicapped person, the commission shall not appoint such an interpreter for the handicapped person.

(3) As used in this section:

(a) "Handicapped person" means a person who cannot readily understand or communicate the English language, or cannot understand the proceedings or a charge made against the handicapped person, or is incapable of presenting or assisting in the presentation of the defense of the handicapped person, because the handicapped person is deaf, or because the handicapped person has a physical hearing impairment or physical speaking impairment.

(b) "Qualified interpreter" means a person who is readily able to communicate with the handicapped person, translate the proceedings for the handicapped person, and accurately repeat and translate the statements of the handicapped person to the commission.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0012

Depositions or Subpoena of Material Witness; Discovery

(1) On petition of any party to a contested case, the commission 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. 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 Oregon or Washington and is unwilling to appear, the commission may issue a subpoena, requiring his appearance.

(2) On petition of any party to a contested case the commission may order that the party be allowed an opportunity to visit the property that is the subject of a hearing before the commission. The petition shall set forth the name, address and telephone number of the person or persons who will visit the property and a showing of the materiality of the evidence to be obtained from the visit. The applicant, the owner of the property or a representative shall be entitled to accompany the petitioning party while on the property and shall be given access to any written report or notes from the site visit prepared for the petitioning party that is not subject to protection under the attorney-client privilege.

(3) The commission may allow petitions to take depositions, for subpoenas, admissions or other forms of discovery prescribed by law in civil actions upon a showing of necessity and unavailability by other means. In determining whether to allow the discovery the commission shall consider:

(a) Whether all parties are represented by counsel;

(b) Whether undue expense or delay in bringing the matter to hearing will result;

(c) Whether the discovery will promote the orderly and prompt conduct of the proceeding; and

(d) Whether the interests of justice will be promoted.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0013

Subpoenas in Contested Cases

(1) The commission 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. A party, other than the commission, 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 commission, shall receive fees and mileage as prescribed by law for witnesses in civil actions.

(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 or superior court of any county, on the application of the commission or of a designated representative of the commission 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.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0014

Evidence in Contested Cases

(1) Irrelevant, immaterial or unduly repetitious evidence shall be excluded but erroneous rulings on evidence shall not preclude commission action on the record unless shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs shall be admissible. The commission shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Any part of the evidence may be received in written form.

(2) All evidence shall be offered and made a part of the record in the case, and except for matters stipulated to an except as provided in subsection (4) of this section no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position.

(3) Every party shall have the right of cross examination of witnesses who testify and shall have the right to submit rebuttal evidence. Persons appearing in a limited party status shall participate in the manner and to the extent prescribed by rule of the commission.

(4) The commission may take notice of judicially cognizable facts, and may take official notice of general, technical or scientific facts within its specialized knowledge. Parties shall be notified at any time during the proceeding but in any event prior to the final decision of material officially noticed and the sources of the materials and they shall be afforded an opportunity to contest the facts so noticed. The commission may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.

(5) No sanction shall be imposed or order be issued except upon consideration of the whole record or such portions thereof as may be cited by any party, and as supported by, and in accordance with, reliable, probative and substantial evidence.

(6) The commission may, at is discretion, be represented at the hearings by the Attorney General of Washington or Oregon.

Stat. Auth.: ORS 197.150 & RCW 43.97
Stats. Implemented: ORS 197.150, RCW 43.97 & 16 U.S.C. 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90; CRGC 1-2002, f. 10-16-02 cert. ef. 12-2-02

350-016-0015

Examination of Evidence by Agency in Contested Cases

Whenever in a contested case a majority of the officials of the commission who are to render the final order have not heard the case or considered the record, the order, if adverse to party other than the commission itself, shall not be made until a proposed order, including findings of fact and conclusions of law, has been served upon the parties and an opportunity has been afforded to each party adversely affected to file exceptions and present argument to the officials who are to render the decision.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0016

Commission Statement of Ex Parte Communications; Notice

(1) A presiding officer may not communicate, directly or indirectly, regarding any issue in the proceeding other than communications necessary to procedural aspects of maintaining an orderly process, with any person employed by the agency without notice and opportunity for all parties to participate, except as provided in this subsection:

(a) Where the ultimate legal authority of an agency is vested in a multimember body, and where that body presides at an adjudication, members of the body may communicate with one another regarding the proceeding;

(b) Any presiding officer may receive aid from legal counsel, or from staff assistants who are subject to the presiding officer's supervision; and

(c) Presiding officers may communicate with other employees or consultants of the agency who have not participated in the proceeding in any manner, and who are not engaged in any investigative or prosecutorial functions in the same or a factually related case.

(d) This subsection does not apply to communications required for the disposition of ex parte matters specifically authorized by statute.

(2) Unless required for the disposition of ex parte matters specifically authorized by statute or unless necessary to procedural aspects of maintaining an orderly process, a presiding officer may not communicate, directly or indirectly, regarding any issue in the proceeding, with any person not employed by the agency who has a direct or indirect interest in the outcome of the proceeding, without notice and opportunity for all parties to participate.

(3) Unless necessary to procedural aspects of maintaining an orderly process, persons to whom a presiding officer may not communicate under subsections (1) and (2) of this section may not communicate with presiding officers without notice and opportunity for all parties to participate.

(4) If, before serving as presiding officer in an adjudicative proceeding, a person receives an ex parte communication of a type that could not properly be received while serving, the person, promptly after starting to serve, shall disclose the communication in the manner prescribed in subsection (5) of this section.

(5) Portions of the record pertaining to ex parte communications or rebuttal statements do not constitute evidence of any fact at issue in the matter unless a party moves the admission of any portion of the record for purposes of establishing a fact at issue and that portion is admitted pursuant to 350-016-0014.

(6) Any commissioner who receives an ex parte communication during the pendency of a proceeding shall place on the record of the proceeding all written communications received, all written responses to the communications and a memorandum stating the substance of all oral communications received, all responses made, and the identity of each person from whom the commissioner received an ex parte communication. The commissioner, or the Chair or presiding officer, shall advise all parties that these matters have been placed on the record. Upon request made within ten days after notice of the ex parte communication, any party desiring to rebut the communication shall be allowed to place a written rebuttal statement on the record.

(7) The Chair or presiding officer shall consider the position of the parties and, after review of the matter, make a recommendation to the Commission to ensure fairness and the appearance of fairness is maintained. The member of the Commission who was the subject of the ex parte contact may voluntarily step down from hearing the matter. The Commission may also request the member of the Commission to participate in the appeal or proceedings or the member of the Commission step down from hearing the matter, and the Chair or presiding officer may seal the portions of the record pertaining to the communication by protective order.

(8) The agency shall, and any party may, report any violation of this section to appropriate authorities for any disciplinary proceedings provided by law.

Stat. Auth.: ORS 197.150 & RCW 43.97
Stats. Implemented: ORS 197.150, RCW 43.97 & 16 U.S.C. 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90; CRGC 1-2002, f. 10-16-02 cert. ef. 12-2-02

350-016-0017

Proposed Order by Hearings Officer; Amendment by Commission; Exemptions

(1) Except as otherwise provided in subsections (1) to (3) of this section, unless a hearings officer is authorized or required by law or commission rule to issue a final order, the hearings officer shall prepare and serve on the commission and all parties to a contested case hearing a proposed order, including recommended findings of fact and conclusions of law. The proposed order shall become final after the 30th day following the date of service of the proposed order, unless the commission within that period issues an amended order.

(2) The commission may be rule specify a period of time after which a proposed order will become final that is different from that specified in subsection (1) of this section.

(3) If the commission determines that additional time will be necessary to allow the commission adequately to review a proposed order in a contested case, the commission may extend the time after which the proposed order will become final by a specified period of time. The commission shall notify the parties to the hearing of the period of extension.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0018

Orders in Contested Cases

(1) Every order adverse to a party to the proceeding shall be in writing or stated in the record and may be accompanied by an opinion.

(2) A final order shall be accompanied by findings of fact and conclusions of law, and the reasons and basis therefore, on all the material issues of fact, law, or discretion presented on the record, including the remedy or sanction. Any findings based substantially upon credibility of evidence or demeanor of witnesses shall be so identified. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of facts and as to each ultimate fact required to support the commission's order.

(3) The commission shall serve in writing any final order within 90 days after the hearing or after the submission of any additional memoranda, briefs or proposed findings. The commission shall notify the parties to a proceeding of a final order by delivering or mailing a copy of the order and any accompanying findings and conclusions to each party or, if applicable, the party's attorney of record.

(4) Every final order shall include a citation of the statutes under which the order may be appealed.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0020

Commission Record of Contested Case

(1) The commission shall maintain an official record of each contested case.

(2) The commission record shall include:

(a) Notices of proceedings;

(b) Any prehearing order;

(c) Any motions, pleadings, briefs, petitions, requests and intermediate rulings;

(d) Evidence received or considered;

(e) A statement of any matters officially noticed;

(f) Proffers of proof and objections and rulings thereon;

(g) Proposed findings, requested orders and exceptions;

(h) The recording prepared for the commission at the hearing, together with any transcript of all or part of the hearing considered before final disposition of the proceeding;

(i) Any final order, initial order or order on reconsideration;

(j) Staff memoranda or data submitted to the commission; and

(k) Matters placed on the record after an ex parte communication.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0022

Service of Process

A petition for judicial review of a final order in a contested case shall be served upon the commission by delivery of a copy of the petition to the office of the executive director or chairperson of the commission at the principal office of the commission.

Stat. Auth.: ORS 196.150 - 196.165, ORS 390.500 - 390.515
Stats. Implemented:
Hist.: CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0024

Commission Record for Review

(1) Within thirty days after service of a petition for judicial review, or within further time allowed by the court, the commission shall transmit to the court the original or a certified copy of the commission record specified in 350-016-0020.

(2) The commission may charge a nonindigent petitioner with the reasonable costs of preparing any necessary copies and transcripts for transmittal to the court. A failure by the petitioner to pay this cost to the commission relieves the commission from the responsibility for preparation of the record and transmittal to the court. For the purposes of this paragraph, a nonindigent person is one whose income is more than 130 percent of the poverty income guidelines published in the Federal Register by the U.S. Department of Health and Human Resources.

Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 1-1987 (Temp), f. & ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f. 11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef. 3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. & cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90

350-016-0025

Appearance of Fairness

Members of the Commission shall comply with Washington's appearance of fairness doctrine in appeals and proceedings under this rule and under Rules 350-060 et seq. and Rules 350-070 et seq.

Stat. Auth.: ORS 197.150 & RCW 43.97
Stats. Implemented: ORS 197.150, RCW 43.97 & 16 U.S.C. 544 et seq.
Hist.: CRGC 1-2002, f. 10-16-02 cert. ef. 12-2-02

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