The New World Rising from the Ashes of the Old

Bill would allow local governments to announce hearings on proposed rules via their webpages, providing better notice at a lower cost

OregonPEN was started two years ago for a number of reasons, not least of which was to help address the ongoing crisis in public funding for services for the public good. One of the ways OregonPEN proposed to address that crisis is by creating a new newspaper that would help state and local agencies and special districts be able to publish the many required public notices (over 300 statutes require publication of notices) at a fraction of the cost to publish in traditional newspapers.

Today, throughout Oregon, more than 1400 state and local governments and special districts are prisoners of monopoly newspapers that extract monopoly rents, charging hundreds or even thousands of times what it costs the publisher to deliver the notice, even as traditional newspaper circulation readership has melted down faster than ice cream in a heat wave.

There is nothing wrong with a requirement that government inform the public when it is proposing to take actions or make decisions that require or would benefit from public participation. It was a progressive idea when printed newspapers were the mass media of their day. But the world has changed dramatically since then. And now, giving notice means giving notice digitally, not in traditional newspapers.

So OregonPEN has published a new model of weekly newspaper for the digital age, providing local and transmitted news for over two years now, and OregonPEN will soon offer public and legal notices, providing governments and private individuals who have to publish a notice with a faster and better way to provide legal and public notices, and for a fraction of the cost, with the net revenue over costs going to fund public benefit programs such as Legal Aid.

Some Oregon legislators have noticed the high cost and declining utility of traditional newspapers, and they have proposed a bill to allow local governments to forego the publication of a notice about a rulemaking hearing in a traditional newspaper; instead, the local governments can publish the notice on the local government’s website.

The bill is a clear sign of recognition that the age of the traditional printed newspaper as the vehicle for giving public notice is coming to an end.

79th OREGON LEGISLATIVE ASSEMBLY–2017 Regular Session
House Bill 2911

Sponsored by Representatives RESCHKE, NEARMAN; ESQUIVEL, NOSSE, Senator LINTHICUM

SUMMARY
Authorizes local government to publish notice of public hearing regarding proposed rule on
agency’s website instead of in newspaper of general circulation.

A BILL FOR AN ACT

Relating to publication of notice of a hearing regarding a proposed rule; amending ORS 183.335.
Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 183.335 is amended to read:

183.335. (1) Prior to the adoption, amendment or repeal of any rule, the agency shall give notice
of its intended action:

(a) In the manner established by rule adopted by the agency under ORS 183.341 (4), which provides a reasonable opportunity for interested persons to be notified of the agency’s proposed action;

(b) In the bulletin referred to in ORS 183.360 at least 21 days prior to the effective date;

(c) At least 28 days before the effective date, to persons who have requested notice pursuant to
subsection (8) of this section; and

(d) Delivered only by electronic mail, at least 49 days before the effective date, to the persons
specified in subsection (15) of this section.

(2)(a) The notice required by subsection (1) of this section must include:

(A) A caption of not more than 15 words that reasonably identifies the subject matter of the
agency’s intended action. The agency shall include the caption on each separate notice, statement, certificate or other similar document related to the intended action.

(B) An objective, simple and understandable statement summarizing the subject matter and
purpose of the intended action in sufficient detail to inform a person that the person’s interests may be affected, and the time, place and manner in which interested persons may present their views on the intended action.

(b) The agency shall include with the notice of intended action given under subsection (1) of this
section:

(A) A citation of the statutory or other legal authority relied upon and bearing upon the
promulgation of the rule;

(B) A citation of the statute or other law the rule is intended to implement;

(C) A statement of the need for the rule and a statement of how the rule is intended to meet the
need;

(D) A list of the principal documents, reports or studies, if any, prepared by or relied upon by
the agency in considering the need for and in preparing the rule, and a statement of the location
at which those documents are available for public inspection. The list may be abbreviated if necessary, and if so abbreviated there shall be identified the location of a complete list;

(E) A statement of fiscal impact identifying state agencies, units of local government and the
public that may be economically affected by the adoption, amendment or repeal of the rule and an estimate of that economic impact on state agencies, units of local government and the public. In considering the economic effect of the proposed action on the public, the agency shall utilize available information to project any significant economic effect of that action on businesses which shall include a cost of compliance effect on small businesses affected. For an agency specified in ORS 183.530, the statement of fiscal impact shall also include a housing cost impact statement as described in ORS 183.534;

(F) If an advisory committee is not appointed under the provisions of ORS 183.333, an explanation as to why no advisory committee was used to assist the agency in drafting the rule; and

(G) A request for public comment on whether other options should be considered for achieving
the rule’s substantive goals while reducing the negative economic impact of the rule on business.

(c) The Secretary of State may omit the information submitted under paragraph (b) of this sub-
section from publication in the bulletin referred to in ORS 183.360.

(d) When providing notice of an intended action under subsection (1)(c) of this section, the
agency shall provide a copy of the rule that the agency proposes to adopt, amend or repeal, or an explanation of how the person may acquire a copy of the rule. The copy of an amended rule shall show all changes to the rule by striking through material to be deleted and underlining all new material, or by any other method that clearly shows all new and deleted material.

(3)(a) When an agency proposes to adopt, amend or repeal a rule, it shall give interested persons
reasonable opportunity to submit data or views. Opportunity for oral hearing shall be granted upon request received from 10 persons or from an association having not less than 10 members before the earliest date that the rule could become effective after the giving of notice pursuant to subsection (1) of this section. An agency holding a hearing upon a request made under this subsection shall give notice of the hearing at least 21 days before the hearing to the person who has requested the hearing, to persons who have requested notice pursuant to subsection (8) of this section and to the persons specified in subsection (15) of this section. The agency shall publish notice of the hearing in the bulletin referred to in ORS 183.360 at least 14 days before the hearing. The agency shall  consider fully any written or oral submission.

(b) If an agency is required to conduct an oral hearing under paragraph (a) of this subsection, and the rule for which the hearing is to be conducted applies only to a limited geographical area within this state, or affects only a limited geographical area within this state, the hearing shall be conducted within the geographical area at the place most convenient for the majority of the residents within the geographical area. At least 14 days before a hearing conducted under this paragraph, the agency shall publish notice of the hearing in the bulletin referred to in ORS 183.360 and:

(A)(i) In a newspaper of general circulation published within the geographical area that is affected by the rule or to which the rule applies[.]; or

(ii) If a newspaper of general circulation is not published within the geographical area that is
affected by the rule or to which the rule applies, [the publication shall be made] in the newspaper
of general circulation published closest to the geographical area; or

(B) If the agency is a local government, as defined in ORS 174.116, on the agency’s website.

(c) Notwithstanding paragraph (a) of this subsection, the Department of Corrections and the State Board of Parole and Post-Prison Supervision may adopt rules limiting participation by inmates in the proposed adoption, amendment or repeal of any rule to written submissions.

(d) If requested by at least five persons before the earliest date that the rule could become effective after the agency gives notice pursuant to subsection (1) of this section, the agency shall
provide a statement that identifies the objective of the rule and a statement of how the agency will subsequently determine whether the rule is in fact accomplishing that objective.

(e) An agency that receives data or views concerning proposed rules from interested persons
shall maintain a record of the data or views submitted. The record shall contain:

(A) All written materials submitted to an agency in response to a notice of intent to adopt,
amend or repeal a rule.

(B) A recording or summary of oral submissions received at hearings held for the purpose of
receiving those submissions.

(C) Any public comment received in response to the request made under subsection (2)(b)(G) of
this section and the agency’s response to that comment.

(D) Any statements provided by the agency under paragraph (d) of this subsection.

(4) Upon request of an interested person received before the earliest date that the rule could
become effective after the giving of notice pursuant to subsection (1) of this section, the agency shall postpone the date of its intended action no less than 21 nor more than 90 days in order to allow the requesting person an opportunity to submit data, views or arguments concerning the proposed action. Nothing in this subsection shall preclude an agency from adopting a temporary rule pursuant to subsection (5) of this section.

(5) Notwithstanding subsections (1) to (4) of this section, an agency may adopt, amend or sus-
pend a rule without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable, if the agency prepares:

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

(b) A citation of the statutory or other legal authority relied upon and bearing upon the
promulgation of the rule;

(c) A statement of the need for the rule and a statement of how the rule is intended to meet the
need;

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

(e) For an agency specified in ORS 183.530, a housing cost impact statement as defined in ORS
183.534.

(6)(a) A rule adopted, amended or suspended under subsection (5) of this section is temporary
and may be effective for a period of not longer than 180 days. The adoption of a rule under this
subsection does not preclude the subsequent adoption of an identical rule under subsections (1) to (4) of this section.

(b) A rule temporarily suspended shall regain effectiveness upon expiration of the temporary
period of suspension unless the rule is repealed under subsections (1) to (4) of this section.

(7) Notwithstanding subsections (1) to (4) of this section, an agency may amend a rule without
prior notice or hearing if the amendment is solely for the purpose of:

(a) Changing the name of an agency by reason of a name change prescribed by law;

(b) Changing the name of a program, office or division within an agency as long as the change
in name does not have a substantive effect on the functions of the program, office or division;
(c) Correcting spelling;

(d) Correcting grammatical mistakes in a manner that does not alter the scope, application or
meaning of the rule;

(e) Correcting statutory or rule references; or

(f) Correcting addresses or telephone numbers referred to in the rules.

(8)(a) Any person may request in writing that an agency send to the person copies of the
agency’s notices of intended action issued under subsection (1) of this section. The person must
provide an address where the person elects to receive notices. The address provided may be a postal mailing address or, if the agency provides notice by electronic mail, may be an electronic mailing address.

(b) A request under this subsection must indicate that the person requests one of the following:

(A) The person may request that the agency mail paper copies of the proposed rule and other
information required by subsection (2) of this section to the postal mailing address.

(B) If the agency posts notices of intended action on a website, the person may request that the
agency mail the information required by subsection (2)(a) of this section to the postal mailing address with a reference to the website where electronic copies of the proposed rule and other information required by subsection (2) of this section are posted.

(C) The person may request that the agency electronically mail the information required by
subsection (2)(a) of this section to the electronic mailing address, and either provide electronic
copies of the proposed rule and other information required by subsection (2) of this section or provide a reference to a website where electronic copies of the proposed rule and other information required by subsection (2) of this section are posted.

(c) Upon receipt of any request under this subsection, the agency shall acknowledge the request,
establish a mailing list and maintain a record of all mailings made pursuant to the request. Agencies may establish procedures for establishing the mailing lists and keeping the mailing lists current. Agencies by rule may establish fees necessary to defray the costs of mailings and maintenance of the lists.

(d) Members of the Legislative Assembly who receive notices under subsection (15) of this section may request that an agency furnish paper copies of the notices.

(9) This section does not apply to rules establishing an effective date for a previously effective
rule or establishing a period during which a provision of a previously effective rule will apply.

(10) This section does not apply to ORS 279.835 to 279.855, 279A.140 to 279A.161, 279A.250 to
279A.290, 279A.990, 279B.050 to 279B.085, 279B.200 to 279B.240, 279B.270, 279B.275, 279B.280,
279C.360, 279C.365, 279C.370, 279C.375, 279C.380, 279C.385, 279C.500 to 279C.530, 279C.540, 279C.545, 279C.550 to 279C.570, 279C.580, 279C.585, 279C.590, 279C.600 to 279C.625, 279C.650 to 279C.670 and 279C.800 to 279C.870 relating to public contracts and purchasing.

(11)(a) Except as provided in paragraph (c) of this subsection, a rule is not valid unless adopted
in substantial compliance with the provisions of this section in effect on the date that the notice
required under subsection (1) of this section is delivered to the Secretary of State for the purpose
of publication in the bulletin referred to in ORS 183.360.

(b) In addition to all other requirements with which rule adoptions must comply, a rule is not
valid if the rule has not been submitted to the Legislative Counsel in the manner required by ORS
183.715.

(c) A rule is not subject to judicial review or other challenge by reason of failing to comply with
subsection (2)(a)(A) of this section.

(12)(a) Notwithstanding the provisions of subsection (11) of this section, but subject to paragraph
(b) of this subsection, an agency may correct its failure to substantially comply with the requirements of subsections (2) and (5) of this section in adoption of a rule by an amended filing, as long as the noncompliance did not substantially prejudice the interests of persons to be affected by the rule.

(b) An agency may use an amended filing to correct a failure to include a fiscal impact statement in a notice of intended action, as required by subsection (2)(b)(E) of this section, or to correct
an inaccurate fiscal impact statement, only if the agency developed the fiscal impact statement with the assistance of an advisory committee or fiscal impact advisory committee appointed under ORS 183.333.

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

(14) When an agency has established a deadline for comment on a proposed rule under the pro-
visions of subsection (3)(a) of this section, the agency may not extend that deadline for another
agency or person unless the extension applies equally to all interested agencies and persons. An
agency shall not consider any submission made by another agency after the final deadline has
passed.

(15) The notices required under subsections (1) and (3) of this section must be given by the
agency to the following persons:

(a) If the proposed adoption, amendment or repeal results from legislation that was passed
within two years before notice is given under subsection (1) of this section, notice shall be given to the legislator who introduced the bill that subsequently was enacted into law, and to the chair or cochairs of all committees that reported the bill out, except for those committees whose sole action on the bill was referral to another committee.

(b) If the proposed adoption, amendment or repeal does not result from legislation that was
passed within two years before notice is given under subsection (1) of this section, notice shall be
given to the chair or cochairs of any interim or session committee with authority over the subject
matter of the rule.

(c) If notice cannot be given under paragraph (a) or (b) of this subsection, notice shall be given
to the Speaker of the House of Representatives and to the President of the Senate who are in office on the date the notice is given.

(16)(a) Upon the request of a member of the Legislative Assembly or of a person who would be
affected by a proposed adoption, amendment or repeal, the committees receiving notice under subsection (15) of this section shall review the proposed adoption, amendment or repeal for compliance with the legislation from which the proposed adoption, amendment or repeal results.
(b) The committees shall submit their comments on the proposed adoption, amendment or repeal to the agency proposing the adoption, amendment or repeal.