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The Oregon Administrative Rules contain OARs filed through March 15, 2014
 
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DEPARTMENT OF FISH AND WILDLIFE

 

DIVISION 1

ADMINISTRATION

Procedural Rules

635-001-0000

Notification of Interested Persons of Proposed Rules

Prior to the adoption, amendment, or repeal of any permanent rule, the Department shall give notice of the proposed action:

(1) In the Secretary of State's Bulletin referred to in ORS 183.360 at least twenty-one (21) days prior to the effective date.

(2) By mailing a copy of the notice to persons on the Agency's mailing list established pursuant to ORS 183.335(7) at least 28 days before the effective date of the rule.

(3) By mailing or furnishing a copy of the notice to the Associated Press.

Stat. Auth.: ORS 183.335 & ORS 183.360
Stats. Implemented: ORS 183.335 & ORS 183.360
Hist.: FWC 35, f. & ef. 1-13-76, Renumbered from 630-001-0000; FWC 81-1994, f. & cert. ef. 10-26-94

635-001-0005

Model Rules of Procedure

Pursuant to ORS 183.341, the Oregon Department of Fish and Wildlife hereby adopts the Model Rules of Procedure as promulgated by the Attorney General under the Administrative Procedures Act, dated January 1, 2006.

[ED. NOTE: The full text of the Attorney General's Model Rules of Procedure is available from the office of the Attorney General or the Department of Fish and Wildlife.]

Stat. Auth.: ORS 183.341(2)
Stats. Implemented: ORS 183.341
Hist.: GC 86, f. 8-26-58; GC 249, f. & ef. 12-1-71; GC 266, f. 10-18-73, ef. 11-11-73; FWC 25, f. & ef. 11-28-75, Renumbered from 630-001-0005; FWC 8-1978, f. & ef. 3-7-78; FWC 3-1981, f. & ef. 1-21-81; FWC 2-1982, f. & ef. 1-11-82; FWC 64-1983, f. & ef. 11-17-83; FWC 21-1986, f. & ef. 6-20-86; FWC 112-1991, f. & cert. ef. 9-30-91; FWC 28-1992, f. & cert. ef. 4-22-92; FWC 8-1994, f. & cert. ef. 2-7-94; DFW 1-2002, f. & cert. ef. 1-3-02; DFW 83-2003, f. & cert. ef. 8-28-03; DFW 50-2004, f. & cert. ef. 6-2-04; DFW 4-2006, f. & cert. ef. 2-15-06

635-001-0007

Model Public Contract Rules

The Model Public Contract Rules, promulgated by the Attorney General, are hereby adopted as the rules of procedures for the Department of Fish and Wildlife.

Stat. Auth.: ORS 496.138 & ORS 496.146
Stats. Implemented: ORS 496.138 & ORS 496.146
Hist.: FWC 27-1992, f. 4-22-92, cert. ef. 4-23-92

635-001-0010

Legal Notice Mailing List and Fee

Any person requesting in writing to be placed on the mailing list (as required by subsection (6) of ORS 183.335) to receive copies of each Department of Fish and Wildlife notice of intended rule making action given pursuant to paragraph (a) of subsection (1) of ORS 183.335 and copies of each rule adopted, amended, or repealed as filed in the office of the Secretary of State pursuant to subsection (1) of ORS 183.355 shall be notified that prior to placement on such mailing list an annual fee of $25 is required to be remitted in advance to defray the costs of mailing and maintenance of mailing lists under subsection (6) of ORS 183.335.

Stat. Auth.: ORS 183
Stats. Implemented: ORS 183
Hist.: FWC 24, f. 11-28-75, ef. 1-1-76, Renumbered from 630-001-0010

635-001-0020

Commission Policy on Advisory Bodies

The Commission shall, consistent with state law:

(1) Consider appointment of minorities and women to fill vacancies so that advisory bodies are representative of the population served, to the extent possible.

(2) Develop a system of staggered terms of office in order to maintain continuity.

(3) Limit terms to four years, with no more than two consecutive terms to be served by any member, unless the Commission, for just cause, chooses to extend the number of said terms or term.

(4) Direct advisory bodies to establish minimum frequency for meetings and to establish a minimum attendance required by advisory body members. The Commission shall be notified of advisory body members who fail to meet the minimum attendance and may, at their discretion, remove advisory body members who fail to meet the attendance requirement.

(5) Notify advisory body members upon their appointment that they serve at the pleasure of the Commission.

Stat. Auth.: ORS 496.138
Stats. Implemented: ORS 496.085, ORS 496.228, ORS 496.460, ORS 506.465, ORS 508.755 & Section 11, Ch. 512, OL 1989
Hist.: DFW 89-1998, f. & cert. ef. 11-25-98

635-001-0025

Civil Damages

(1) It is the policy of the Commission that the Director may institute suit for the recovery of damages for the unlawful taking or killing of wildlife pursuant to ORS 496.705.

(2) In deciding whether to institute suit against a person convicted of unlawfully taking or killing wildlife, the Director may consider, but is not limited to, the following criteria:

(a) Whether the person was convicted of unlawfully taking or killing more than one game or furbearing mammal;

(b) Whether the person was convicted of selling or wasting the wildlife, or parts thereof, unlawfully taken or killed;

(c) Whether the person convicted has also been convicted of any previous violations of the wildlife laws or regulations promulgated pursuant thereto;

(d) Whether the violation for which the person was convicted occurred outside any authorized season for the species taken or killed; and

(e) Whether the cumulative value, as established by ORS 496.705, of the wildlife unlawfully taken or killed is equal to or greater than $100.

Stat. Auth.: ORS 496
Stats. Implemented: ORS 496
Hist.: FWC 15-1982, f. & ef. 3-5-82

635-001-0035

Sampling Data and Tag Recovery

It is unlawful for any person licensed by the Department of Fish and Wildlife to fail to comply with the directions of authorized Department personnel related to the collection of sampling data or material (e.g., tissue and blood samples, otoliths and other bones, fins, shells, parasites, tags, etc.) from fish, shellfish, or marine invertebrates. It is also unlawful for any such person to fail to relinquish to the Department any part of a salmon or other food fish containing coded-wire tags, including but not limited to, the snouts of those salmon that are marked by having clipped adipose fins.

Stat. Auth.: ORS 496 & 506
Stats. Implemented: ORS 496 & 506
Hist.: FWC 26-1983(Temp), f. 6-30-83, ef. 7-1-83; FWC 20-1984, f. & ef. 5-11-84; DFW 155-2009, f. 12-28-09, cert. ef. 1-1-10

635-001-0050

License Refunds

Consistent with the authority to make refunds prescribed in ORS 293.445(2), the Department will issue a refund of moneys received in excess of the amount legally due:

(1) If the Department determines a person has made an overpayment of more than $5; or

(2) Upon written request from a person who made an overpayment, or the person's legal representative, if the request is submitted to the Department within three years of the date that the Department received the overpayment.

(3) License and tag refunds will be granted upon request only to a person furnishing satisfactory evidence to the Department that:

(a) More licenses or tags than necessary have been acquired;

(b) A higher fee than set by statute was paid for;

(c) A license agency made an error; or

(d) Death of a tag holder occurs before the opening of the season for which the tag was issued; only the tag fee shall be refunded. For the purpose of this rule the person in possession of the deceased's tag shall be presumed to be entitled to the refund.

(4) Where seasons have closed that affect a large number of license buyers and where other similar opportunities are not available, the Director may authorize a license refund for monies received by the state, which, in equity and good conscience, it is not entitled to.

Stat. Auth.: ORS 293.445
Stats. Implemented: ORS 293.445
Hist.: FWC 79-1985, f. & ef. 12-11-85; FWC 25-1987, f. & ef. 6-11-87; FWC 81-1994, f. & cert. ef. 10-26-94; DFW 4-2009(Temp), f. 1-13-09, cert. ef. 1-14-09 thru 7-12-09; Administrative correction 7-21-09; DFW 125-2011, f. & cert. ef. 9-8-11

635-001-0055

License Exchanges

(1) A license may be exchanged for a combination hunting and fishing license, a senior combination license or a Sports Pac.

(2) The Department will refund (in full or in part) the license fee to a customer who has purchased a full price license if the Department determines that at the time of purchase, the licensee was qualified for one of the following free or reduced-price licenses:

(a) Senior license;

(b) Pioneer license; or

(c) Disabled Veterans license.

(3) Exchanges must occur within 90 days of the purchase of the original license.

(4) Exchanges and refunds must be done in person at a Department Field Office or at the Department’s Salem Headquarters; exchanges or refunds may also be requested by mail order by contacting the Department’s Salem Headquarters.

(a) To request an exchange or refund under this rule, a person must provide the Department with the original license being returned, along with any controlled hunt applications, tags and permits issued under that license;

(b) All mail order requests for exchanges or refunds must also include:

(A) A completed license application;

(B) A letter requesting a refund or exchange (specifying the type of license being requested); and

(5) Full payment of the new license is due at the time of exchange, plus shipping and handling charges for mail order requests.

(6) License refunds will be mailed to the licensee after a replacement license has been issued.

(7) Refunds will be mailed to the customer within six to eight weeks.

(8) Agent fees are non refundable.

Stat. Auth.: ORS 293.445
Stats. Implemented: ORS 293.445
Hist.: DFW 125-2011, f. & cert. ef. 9-8-11

635-001-0060

Tribal I.D. in Lieu of Licenses

In accordance with ORS 497.170, tribal identification cards may be issued in lieu of Department-issued free hunting and fishing licenses for Columbia River Treaty Tribe members.

Stat. Auth.: ORS 497
Stats. Implemented: ORS 497
Hist.: FWC 102-1987, f. 12-16-87, ef. 1-1-88

635-001-0070

Agency Representation by Employee

(1) Subject to the approval of the Attorney General, an officer or employee of the Department, designated by the Director, is authorized to represent the Department in contested case hearings concerning suspension from the Landowner Preference Program or the Master Hunter Program, suspension of certification as a Hunter Education Instructor, or suspension or revocation of licenses or tags under the Wildlife Violator Compact.

(2) The agency representative may not give legal advice or present legal argument on behalf of the agency.

(a) “Legal argument” includes arguments on:

(A) The jurisdiction of the agency to hear the contested case;

(B) The constitutionality of a statute or rule or the application of a constitutional requirement to an agency; and

(C) The application of court precedent to the facts of the particular contested case proceeding.

(b) Legal argument does not include presentation of motions, evidence, examination and cross-examination of witnesses or presentation of factual arguments or arguments on:

(A) The application of statutes or rules to the facts in the contested case;

(B) Comparison of prior actions of the agency in handling similar situations;

(C) The literal meaning of the statutes or rules directly applicable to the issues in the contested case;

(D) The admissibility of evidence; and

(E) The correctness of procedures being followed in the contested case hearing.

Stat. Auth.: ORS 183.452 & 496.138
Stats. Implemented: ORS 183.452 & 496.138
Hist.: DFW 126-2010, f. & cert. ef. 9-10-10

635-001-0100

Definition

For the purpose of ORS 498.279, "competition or contest in which prizes are offered" means any event where the total value of all cash or merchandise awards exceeds $25.

Stat. Auth.: ORS 183, ORS 299 & ORS 496
Stats. Implemented: ORS 183, ORS 299 & ORS 496
Hist.: FWC 3-1982, f. & ef. 1-11-82; FWC 96-1987, f. & ef. 11-17-87

635-001-0105

Bass and Walleye Fishing Tournaments

Black bass or walleye fishing tournaments are subject to provisions of ORS 498.279 and the following rules:

(1) Permit Application and Processing; General Provisions.

(a) The Department will accept applications for bass tournaments beginning November 1 of the year preceding the year in which the proposed tournament will be held. Requests will be processed and permits issued in order of time of receipt at the Bend ODFW office beginning December 15 of the year preceding the year in which the proposed tournament will be held.

(b) Parties requesting conflicting tournaments are encouraged to resolve the conflict among themselves. Parties may submit an amended tournament request that resolves conflicts among competing applicants that reserves the priority date of the original requests.

(c) At the request of the Commission, the sponsor of the event shall report the results of the event to the Commission, on a form provided by the Commission not later than 30 days after the end of the event.

(d) The Commission may order closure of any waters to competitions or contests when the Commission considers such action necessary to protect wildlife resources.

(e) Live fish must be released in scattered locations at least one mile from the weigh-in site or at locations designated by ODFW. The tournament director or a designee may exceed possession limits for the purpose of transporting fish from the weigh-in site to release sites on the same water.

(f) No bass or walleye may be retained by tournament sponsors or participants after a tournament ends except as specified in subsection (1)(g).

(g) The tournament director may dispose of fish that die during or as a result of tournament activities in the following manner:

(A) donated in accordance with local bag and possession limits to individuals at the weigh-in site not participating in or with the tournament. The tournament sponsor must issue a receipt for donated fish that must stay with the fish. The receipt must include the name of the recipient and the species and number of fish donated;

(B) the tournament director may exceed the bag or possession limit in order to transport the fish to donate them in a manner detailed in OAR 635-002-0005.

(2) Large Tournaments.

(a) Large tournaments are those with more than 24 boats or 49 individuals participating.

(b) A permit from ODFW is required. Sponsors must apply for permits at least 30 days prior to the event. Permit applications must include a written description of the manner in which the competition or contest is to be conducted. Such description shall include the location, dates and times of the event, the maximum number of boats participating, the amounts of prizes, and the equipment and methods to be used by contestants to keep fish taken in a live and healthy condition. Permits must be in possession of the sponsor or a designated representative at the tournament location, and must be shown to OSP or ODFW employees on request.

(c) The frequency of bass tournaments and number of participants is limited. Surface areas of tournament waters will be based on Atlas of Oregon Lakes (OSU Press, 1985) (See Table 1). No more large competitions or contests for bass may be held on any particular body of water than provided by table 1, and no more often than once in any 13-day period except on the Columbia River downstream from Bonneville Dam, including the Willamette River upstream to Willamette Falls, and on Columbia River impoundments, where a competition or contest may not be held at launch sites less than 10 river miles apart more often than once in any 13-day period. Distance between launch sites will be determined from the River Mile Index for the Main Stem Columbia River (Hydrology Subcommittee of the Columbia Basin Inter-Agency Committee, 1962) and the Willamette River Recreation Guide (Oregon State Marine Board and Oregon Parks and Recreation Department, 1998).

(d) If an organization has applied for and received a tournament permit for a particular lake continuously for the past 25 years, that organization will receive “grandfather” rights to a permit on that lake. That organization will retain “grandfather” rights as long as it:

(A) continuously reapplies for a permit every year; and

(B) draws a minimum of 50 participants for two years in a 3-year period. If an organization with “grandfather” rights to a certain waterbody fails to meet the above criteria, ODFW shall rescind that organization’s grandfather rights but may permit the organization to retain its grandfather rights if it failed to meet these criteria due to circumstances beyond its control. Once organizations with grandfather rights are allotted permits (which includes preference for selecting a date for a particular lake) the remaining permits will be awarded to competing organizations through a point system as described below:

(i) Every year that an organization applies for one of the remaining permits and does not draw one, that organization receives a “point.” An organization can only receive a maximum of one point per year per waterbody. An organization must apply every year to retain their points, otherwise their points go to zero;

(ii) If the number of organizations competing for the remaining permits after the grandfather allocation on a waterbody is less than the number of permits available, all organizations receive a permit and lose all of their points;

(iii) If the number of organizations competing for the remaining permits on a waterbody is more than the number of permits available after the grandfather allocation, permits are allocated by lottery among the permit applicants with the most points. If permits are still available after this allocation, they are allocated by lottery among the remaining organizations with the next most points, and so on until all authorized permits are allocated;

(iv) If an organization with a permit applies for an additional permit, it will only be considered after all organizations without permits have been granted one.

(e) Not withstanding restrictions set forth in the Oregon Sport Fishing regulations published annually, the following catch and possession restrictions apply to participants in bass fishing tournaments. Participants competing as individuals may continue to fish while holding five bass of any size in the livewell, as long as one bass is released immediately upon catching a bass. Two person teams may continue to fish while holding 10 bass of any size in the livewell, regardless of the number of bass caught by each angler, as long as one bass is released immediately when either team member catches a bass. The released bass may be either the bass just caught, or from the livewell. However, if the number of participants on any single boat is three or more anglers, the possession limit per boat is limited to 10 bass of any size.

(f) Frequency of walleye tournaments is limited to one in each 13-day period, and the total number of tournaments is further limited as provided in Table 2, however, a competition or contest for walleye on the Columbia River downstream from Bonneville Dam, including the Willamette River upstream to Willamette Falls, and on Columbia River impoundments, may not be held at launch sites less than 10 river miles apart more often than once in any 13-day period. Distance between launch sites will be determined from the River Mile Index for the Main Stem Columbia River (Hydrology Subcommittee, 1962) and the Willamette River Recreation Guide (Oregon State Marine Board and Oregon Parks and Recreation Department, 1998).

(g) There is no limit on the number of participants in a walleye tournament.

(3) Small Bass or Walleye Tournaments.

(a) Small black bass or walleye fishing tournaments are those which have fewer than 50 participants and 25 participating boats.

(b) Sponsors must notify the local ODFW District fish biologist and OSP office of the location, date and time of the event at least 10 days prior to the commencement of the event.

(c) Tournament participant boats must be clearly marked as “Contestant” or “Tournament” in a manner visible without magnification from a minimum distance of 50 yards.

(d) Notwithstanding restrictions set forth in the Oregon Sport Fishing regulations published annually, the catch and possession restrictions in subsection (2)(e)of these rules apply to participants in small bass fishing tournaments.

[ED. NOTE: Tables and publications referenced are available from the agency.]

Stat. Auth.: ORS 498.118, 496.138 & 496.146
Stats. Implemented: ORS 498.279 & 498.284
Hist.: FWC 96-1987, f. & ef. 11-17-87; FWC 77-1995, f. 9-13-95, cert. ef. 1-1-96; DFW 78-2001, f. & cert. ef. 8-24-01; DFW 127-2003, f. 12-11-03, cert. ef. 1-1-04; DFW 124-2010, f. & cert. ef. 9-3-10

635-001-0116

Game Fish Tournaments

In accordance with ORS 498.286 (2), when a prize is offered that exceeds $1,000 for the amount, quality, size, weight or other physical characteristic of a game fish taken, other than black bass or walleye, the following restrictions apply:

(1) A permit from ODFW is required. Sponsors must apply for permits at least 60 days prior to the event. Permits must be in possession of the sponsor or a designated representative at the tournament location, and must be shown to OSP or ODFW representatives on request. ODFW shall set permit conditions after consideration of the condition of the resource and social impacts.

(2) Permit applications shall be accepted beginning November 1 of the year prior to the event. No more than one event on any water body shall be authorized on any single date, and no more than two tournaments shall be authorized on any single water body in any 14 days.

(3) All current angling regulations apply and shall not be altered to accommodate any tournament. In addition, special permit conditions such as reduced bag limits may be applied in order to protect affected fish stocks.

(4) Catch and release is permitted, provided fish are released unharmed.

(5) Tournament sponsors are responsible for identifying non-profit outlets for any unwanted fish which result from the tournament.

(6) Tournament sponsors are responsible for meeting all other state and local requirements for such things as special use permits, etc.

Stat. Auth.: ORS 496.118, ORS 496.138 & ORS 496.146
Stats. Implemented: ORS 498.279
Hist.: DFW 90-1998, f. & cert. ef. 11-25-98

Standards and Procedures Under the Wildlife Law Violator Compact

635-001-0200

Purpose

The purpose of these rules is to provide standards and procedures for license suspension and revocation required under the Wildlife Violator Compact (Compact), and to identify the Compact Administrator to the Board of Compact Administrators for the State of Oregon.

Stat. Auth.: ORS 496 & ORS 497
Stats. Implemented: ORS 496 & ORS 497
Hist.: FWC 43-1991, f. 5-1-91, cert. ef. 5-6-91

635-001-0205

Definitions

The Wildlife Violator Compact, ORS 496.715, defines "suspension" to include any revocation, denial or withdrawal of any or all license privileges. However, to insure consistency with other applicable law, the terms "revocation" and "suspension" as used in these rules shall have the following meaning:

(1) "Revocation" means to cancel, annul and make void for the entire remainder of the term of any license.

(2) "Suspension" means to temporarily discontinue and interrupt a license, but with an expectation that it may be reinstated upon the occurrence of a specific event, such as evidence of compliance with a citation.

Stat. Auth.: ORS 496 & ORS 497
Stats. Implemented: ORS 496 & ORS 497
Hist.: FWC 43-1991, f. 5-1-91, cert. ef. 5-6-91

635-001-0210

Standard for License Suspension or Revocation

(1)(a) Upon receipt of the following information from a party state to the Compact, the Director shall initiate license suspension proceedings in accordance with OAR 635-001-0215:

(b) That a person has failed to comply with the terms of a citation for a fish or wildlife offense from the licensing authority of a party state. Such suspension shall remain in effect until the Director receives adequate evidence of compliance with the citation.

(2) Upon receipt of the following information from a party state to the Compact, the Director or Commission may initiate license suspension or revocation proceedings as appropriate in accordance with OAR 635-001-0215.

(a) That a person has had his or her license privileges suspended or revoked in a party state for a fish and wildlife offense which could have been the basis for suspension or revocation of license privileges in Oregon. The period of suspension is the period provided by Oregon statute for an equivalent offense or such longer period imposed by the party state.

(b) That a person has been convicted in a party state of a fish or wildlife offense. The period of suspension is the period provided by Oregon statute for an equivalent offense or such longer period imposed by the party state.

(3) Any suspension under this rule begins when the Commission or Department issues a final order of suspension.

Stat. Auth.: ORS 496.750
Stats. Implemented:
Hist.: FWC 43-1991, f. 5-1-91, cert. ef. 5-6-91; DFW 40-2006, f. & cert. ef. 6-9-06; DFW 130-2007, f. 12-20-07, cert. ef. 1-1-08

635-001-0215

Procedures to Suspend or Revoke

(1) When the Director is notified of a failure to comply with the terms of a citation from the licensing authority of a party state, the Director shall initiate license suspension proceedings in accordance with this section.

(2) When the Commission has been notified of any of the conditions under 635-001-0210(2), the Director or Commission may initiate license suspension or revocation proceedings in accordance with this section.

(3) The person shall be notified in writing of the Director's or Commission's intention to suspend, revoke, or refuse to issue, licenses and tags, and shall be provided with an opportunity to request a hearing within 14 days of the date of mailing.

(4) If at the end of 14 days no response has been received, a final order shall be issued suspending, revoking or refusing to issue license privileges and mailed by certified mail to the person.

(5) If prior to 14 days from the date of mailing the person submits a request for a hearing, a hearing will occur. At the discretion of the Department, the case may be reviewed in writing upon stipulation by the licensee or a hearing may be scheduled before the administrative law judge.

(6) Following the administrative law judge's review, a proposed order, including findings of fact and conclusions of law, shall be prepared by the administrative law judge, served on all parties, and shall be forwarded to the Director or Commission.

(7) In accordance with ORS Chapter 183, the Director or Commission shall provide an opportunity to all parties to respond in writing within 14 days to the proposed order of the administrative law judge.

(8) A final order shall be reviewed and signed by the Director or Commission chair and all parties shall be provided a copy by certified mail.

Stat. Auth.: ORS 496 & 497
Stats. Implemented: ORS 496 & 497
Hist.: FWC 43-1991, f. 5-1-91, cert. ef. 5-6-91; DFW 40-2006, f. & cert. ef. 6-9-06

635-001-0220

Compact Administrator

For the purposes of Article VII of the Wildlife Violator Compact referred to in ORS 496.750 the Administrative head of the Oregon State Police Game Enforcement unit, or his or her designee, shall be the Compact Administrator for the State of Oregon.

Stat. Auth.: ORS 496 & ORS 497
Stats. Implemented: ORS 496 & ORS 497
Hist.: FWC 43-1991, f. 5-1-91, cert. ef. 5-6-91

635-001-0230

Payment of R&E Revenues to Watershed Improvement Grant Fund

In accordance with Chapter 8, Oregon Laws 1997, $1,000,000 of revenues from surcharges on recreational licenses deposited to the Restoration and Enhancement Fund shall be paid to the Watershed Improvement Grant Fund in accordance with the following schedule:

(1) On or before June 30, 1998, $400,000 to be transferred.

(2) On or before January 1, 1999, $200,000 to be transferred.

(3) On or before June 30, 1999, $400,000 to be transferred.

Stat. Auth.: Sec. 13, Ch. 8, HB 3700, 1997
Stats. Implemented: Sec. 13, Ch. 8, HB 3700, 1997
Hist.: FWC 55-1997, f. & cert. ef. 9-4-97

General Rules

635-001-0301

Inspection of Public Records

All records of the Commission and the Department defined as public records under ORS 192.410, and not exempt from disclosure under ORS 192.501 to 192.505, are available for inspection by members of the public at the current principal offices of the Commission and Department in Salem, Oregon, or other reasonable location designated by the Director. Inspection of such records will be permitted during normal Department work hours, provided responding to such a request does not unreasonably disrupt the Commission's and the Department's duties.

Stat. Auth.: ORS 192.420
Stats. Implemented: ORS 192.420
Hist.: DFW 34-2000, f. & cert. ef. 6-23-00; DFW 31-2004, f. 4-22-04, cert. ef. 5-1-04

635-001-0311

Information Officers and Certification of Public Records

(1) The following individuals are designated as information officers for all public records requests:

(a) Assistant to the Commission for agendas, reports, correspondence and other files maintained by and for the Commission itself;

(b) Director of the Department, Deputy Director, Director of each division and section heads, for records and files of the Department and its staff;

(c) Each information officer must designate an alternate.

(2) Upon request, the information officer will give a certified copy of any released public record.

Stat. Auth.: ORS 192.430
Stats. Implemented: ORS 192.430
Hist.: DFW 34-2000, f. & cert. ef. 6-23-00

635-001-0321

Requests to Inspect or Obtain Copies of Public Records

A request to inspect or copy a public record must be made in writing and must identify as specifically as possible the type of record(s), subject matter, approximate date(s), names of persons involved, and the number of copies requested; and the name, address and phone number of the person requesting the public records. Requests must be sent to the Office of the Director, 3406 Cherry Ave NE, Salem, OR 97303, faxed to (503) 947-6042 or emailed to odfw.commission@state.or.us. Requests for certain commercial fishing records (Vessel Records, Crab Permit Records and Individual Records) must use the appropriate forms found online at www.dfw.state.or.us/fish/commercial.

Stat. Auth.: ORS 192.440
Stats. Implemented: ORS 192.440
Hist.: DFW 34-2000, f. & cert. ef. 6-23-00; DFW 139-2009, f. & cert. ef. 11-3-09

635-001-0331

Fees for Inspection and Copies of Public Records

(1) As authorized by law, the Department charges a fee reasonably calculated to reimburse the Department for its actual cost in making public records available. The fees for the most common cost elements are specified below. Fees for information requested in formats other than those listed below will be determined on a case-by-case basis. All fees must be paid in advance.

(a) No charge for the first 30 minutes of staff time to provide the information requested. After that point, $28.00 per hour for staff time (billed in incitements of $7.00 per every 15 minutes or fraction thereof — a prorated fee is not available for less than a quarter- hour).

(b) Actual attorney fees charged to the Department for the time spent by an attorney in reviewing the public records, redacting material for the public records or segregating the public records into exempt and nonexempt records.

(c) No charge for printing or photocopying the first 10 pages. $0.25 per single sided printed or photocopied page after the first 10 single-sided pages. $0.50 per two-sided printed or photocopied pages after the first five two-sided pages. $0.30 for each page faxed to a requester (not including the cover page) limited to a 20 page maximum.

(d) $5.00 per other electronic data provided on a CD.

(e) When the request is for a list of names and addresses of license, permit or tag holders, the charge is $25.00 per list (in addition to any relevant changes above), or the $5.00 CD fee if provided on a CD, or the cost of other media (e.g., magnetic tapes, labels, etc.); plus $0.01 per name for every name in addition to the first 2,000 provided.

(f) Actual material costs for providing records on audio tapes, video tapes, microfilm, magnetic tapes, or other media not otherwise addressed above.

(g) Actual costs of mailing and/or shipping records.

(h) $10.00 for each notarized signature or certified copy signature request.

(2) The Department will not charge fees for providing public records to other state agencies.

Stat. Auth.: ORS 192.440
Stats. Implemented: ORS 192.440
Hist.: DFW 34-2000, f. & cert. ef. 6-23-00; DFW 139-2009, f. & cert. ef. 11-3-09

635-001-0410

Confidentiality and Inadmissibility of Mediation Communications

(1) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(2) Nothing in this rule affects any confidentiality created by other law. Nothing in this rule relieves a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690. Whether or not they are confidential under this or other rules of the agency, mediation communications are exempt from disclosure under the Public Records Law to the extent provided in ORS 192.410 to 192.505.

(3) This rule applies only to mediations in which the agency is a party or is mediating a dispute as to which the agency has regulatory authority. This rule does not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in ORS 36.234.

(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.

(5) Mediations Excluded. Sections (6)–(10) of this rule do not apply to:

(a) Mediation of workplace interpersonal disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials, unless a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed; or

(b) Mediation in which the person acting as the mediator will also act as the hearings officer in a contested case involving some or all of the same matters;

(c) Mediation in which the only parties are public bodies;

(d) Mediation involving two or more public bodies and a private party if the laws, rule or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential;

(e) Mediation involving 15 or more parties if the agency has designated that another mediation confidentiality rule adopted by the agency may apply to that mediation.

(6) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c)–(d), (j)–(l) or (o)–(p) of section (9) of this rule.

(7) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in sections (8)–(9) of this rule, mediation communications are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced as evidence by the parties or the mediator in any subsequent proceeding.

(8) Written Agreement. Section (7) of this rule does not apply to a mediation unless the parties to the mediation agree in writing, as provided in this section, that the mediation communications in the mediation will be confidential and/or nondiscoverable and inadmissible. If the mediator is the employee of and acting on behalf of a state agency, the mediator or an authorized agency representative must also sign the agreement. The parties' agreement to participate in a confidential mediation must be in substantially the following form. This form may be used separately or incorporated into an "agreement to mediate."

 Agreement to Participate in a Confidential Mediation

The agency and the parties to the mediation agree to participate in a mediation in which the mediation communications are confidential and/or nondiscoverable and inadmissible to the extent authorized by OAR 635-001-0410(7) and this agreement. This agreement relates to the following mediation:

a) ____________________________________________________

 (Identify the mediation to which this agreement applies.)

b) To the extent authorized by OAR 635-001-0410(7), mediation communications in this mediation are: (check one or more)

___ confidential and may not be disclosed to any other person not admissible in any subsequent administrative proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent administrative proceeding, or introduced as evidence by the parties or the mediator in any subsequent administrative proceeding

___ not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent administrative, judicial or arbitration proceeding, or introduced as evidence by the parties or the mediator in any subsequent administrative, judicial or arbitration proceeding

c) ________________________________________

 Name of Agency

________________________________________ -- _________

Signature of Agency's authorized representative -- Date

(when agency is a party) or Agency employee

acting as the mediator (when Agency is mediating the dispute)

d) ________________________________________

 Name of party to the mediation

________________________________________ -- _________

Signature of party's authorized representative -- Date

e) ________________________________________

 Name of party to the mediation

________________________________________ -- _________

Signature of party's authorized representative -- Date

(9) Exceptions to confidentiality and inadmissibility.

(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.

(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.

(c ) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.

(d) Any mediation communication related to the conduct of a licensed professional that is made to or in the presence of a person who, as a condition of his or her professional license, is obligated to report such communication by law or court rule is not confidential and may be disclosed to the extent necessary to make such a report.

(e) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law. 

(f) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.

(g) An employee of the agency may disclose confidential mediation communications to another agency employee so long as the disclosure is necessary to conduct authorized activities of the agency. An employee receiving a confidential mediation communication under this subsection is bound by the same confidentiality requirements as apply to the parties to the mediation.

(h) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.

(i) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.

(j) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.

(k) When a mediation is conducted as part of the negotiation of a collective bargaining agreement, the following mediation communications are not confidential and such communications may be introduced into evidence in a subsequent administrative, judicial or arbitration proceeding:

(A) A request for mediation, or

(B) A communication from the Employment Relations Board Conciliation Service establishing the time and place of mediation, or

(C) A final offer submitted by the parties to the mediator pursuant to ORS 243.712, or

(D) A strike notice submitted to the Employment Relations Board.

(l) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.

(m) Written mediation communications prepared by or for the agency or its attorney are not confidential and may be disclosed and may be introduced as evidence in any subsequent administrative, judicial or arbitration proceeding to the extent the communication does not contain confidential information from the mediator or another party, except for those written mediation communications that are:

(A) attorney client privileged communications so long as they have been disclosed to no one other than the mediator in the course of the mediation or to persons as to whom disclosure of the communication would not waive the privilege, or

(B) Attorney work product prepared in anticipation of litigation or for trial, or

(C) Prepared exclusively for the mediator or in a caucus session and not given to another party in the mediation other than a state agency, or

(D) Prepared in response to the written request of the mediator for specific documents or information and given to another party in the mediation, or

(E) Settlement concepts or proposals, shared with the mediator or other parties.

(n) A mediation communication made to the agency may be disclosed and may be admitted into evidence to the extent the director determines that disclosure of the communication is necessary to prevent or mitigate a serious danger to the public's health or safety, and the communication is not otherwise confidential or privileged under state or federal law.

(o) The terms of any mediation agreement are not confidential and may be introduced as evidence in a subsequent proceeding, except to the extent the terms of the agreement are exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms to be confidential under ORS 30.402 or state or federal law requires the terms to be confidential.

(p) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).

(10) When a mediation is subject to section (7) of this rule, the agency will provide to all parties to the mediation and the mediator a copy of this rule or a citation to the rule and an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.

Stat. Authority: ORS 36.224
Stat. Implemented: ORS 36.224, 36.228, 36.230 & 36.232
Hist.: DFW 93-2010(Temp), f. & cert. ef. 7-1-10 thru 12-26-10

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