ORS 183.400¹
Judicial determination of validity of rule

(1) The validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases. The court shall have jurisdiction to review the validity of the rule whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question, but not when the petitioner is a party to an order or a contested case in which the validity of the rule may be determined by a court.

(2) The validity of any applicable rule may also be determined by a court, upon review of an order in any manner provided by law or pursuant to ORS 183.480 (Judicial review of agency orders) or upon enforcement of such rule or order in the manner provided by law.

(3) Judicial review of a rule shall be limited to an examination of:

(a) The rule under review;

(b) The statutory provisions authorizing the rule; and

(c) Copies of all documents necessary to demonstrate compliance with applicable rulemaking procedures.

(4) The court shall declare the rule invalid only if it finds that the rule:

(a) Violates constitutional provisions;

(b) Exceeds the statutory authority of the agency; or

(c) Was adopted without compliance with applicable rulemaking procedures.

(5) In the case of disputed allegations of irregularities in procedure which, if proved, would warrant reversal or remand, the Court of Appeals may refer the allegations to a master appointed by the court to take evidence and make findings of fact. The court’s review of the master’s findings of fact shall be de novo on the evidence.

(6) The court shall not declare a rule invalid solely because it was adopted without compliance with applicable rulemaking procedures after a period of two years after the date the rule was filed in the office of the Secretary of State, if the agency attempted to comply with those procedures and its failure to do so did not substantially prejudice the interests of the parties. [1957 c.717 §6; 1971 c.734 §9; 1975 c.759 §9; 1979 c.593 §17; 1987 c.861 §3]

Notes of Decisions

Appeal pro­ce­dures es­tab­lished by Administrative Procedures Act were sufficient to sustain delega­tion of legislative authority made by [former] ORS 487.475, notwithstanding that rule promulgated pursuant to that sec­tion did not provide ap­peal safeguards. Bercot v. Oregon Transporta­tion Commission, 31 Or App 449, 570 P2d 1195 (1977)

Rules can be declared invalid under this sec­tion only because of failure to comply with require­ments specified herein and not because of failure to state reasoning or factual basis behind rule. Interna­tional Council of Shopping Centers v. Environ­mental Quality Comm’n, 41 Or App 161, 597 P2d 847 (1979), Sup Ct review denied

Monetary relief is not available in pro­ceed­ing to determine validity of rule. Burke v. Children’s Services Division, 288 Or 533, 607 P2d 141 (1980)

Proceedings for acknowledg­ment of local comprehensive plans are not a form of rulemaking subject to judicial review under this sec­tion. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)

“Authority” in phrase “exceeds the statutory authority of the agency” cannot be taken to mean only overall area of agency’s authority or jurisdic­tion. Planned Parenthood Assn. v. Dept. of Human Resources, 297 Or 562, 687 P2d 785 (1984)

Only when party places rule’s validity at issue in separate civil ac­tion may circuit courts determine rule’s validity. Hay v. Dept. of Transporta­tion, 301 Or 129, 719 P2d 860 (1986)

Where peti­tioner challenges Water Resources Commission’s temporary rule amending OAR 690-80-060 (5)(c), com­mis­sion’s findings and state­ment of need do not provide adequate support for promulga­tion of temporary rule and rule was therefore, adopted without compliance with applicable rulemaking pro­ce­dures and violates Scenic Water­ways Act. Waterwatch of Oregon v. Oregon Water Res. Comm., 97 Or App 1, 774 P2d 1118 (1989)

Proper setting for testing applica­tion of administrative rule that is valid on its face is in contested case. Oregon Bankers Assn. v. Bureau of Labor and Ind., 102 Or App 539, 796 P2d 587 (1990)

There is justiciable controversy where agency believes there is no conflict and peti­tioner believes there is conflict, even if agency takes no posi­tion on effect of measure on statutes and rules, because agency is deemed to accept measure as constitu­tional. Merrick v. Board of Higher Educa­tion, 103 Or App 328, 797 P2d 388 (1990)

Prohibi­tion in this sec­tion against independent challenge of rule by per­son while that per­son is engaged in pending contested case or order involving same rule only applies while rule still may be challenged in course of challenging order or result in contested case. Minor v. AFSD, 105 Or App 178, 804 P2d 1170 (1991)

Although Public Utilities Commission denominated ac­tion as “order,” ac­tion was rule under ORS 183.310 (Definitions for chapter) and circuit court did not have jurisdic­tion to determine rule’s validity. Pacific Northwest Bell Telephone Co. v. Eachus, 107 Or App 539, 813 P2d 46 (1991)

Inspec­tion of prison inmates’ mail tends to promote prison security and fears about possibility of abuse were not cognizable in review under this sec­tion. Clark v. Schumacher, 109 Or App 354, 820 P2d 3 (1991)

Review under this statute does not include examina­tion of factual basis for rule or, in case of fee assess­ment, inquiry into whether assess­ment is supported by evidence. Unified Sewerage Agency v. Dept. of Environ. Quality, 117 Or App 29, 843 P2d 502 (1992)

Where present permanent rule cross-references former temporary rule, any invalidity or indeterminacy of cross-reference is problem with present rule and challenge to former temporary rule is moot. Edmunson v. Dept. of Ins. and Finance, 314 Or 291, 838 P2d 589 (1992)

Ability of appellate court to declare rule invalid based upon viola­tion of constitu­tional pro­vi­sions is limited to instances of facial unconstitu­tionality. AFSCME Local 2623 v. Depart­ment of Correc­tions, 315 Or 74, 843 P2d 409 (1992)

Ac­tion seeking injunc­tion against rule not yet in effect was not ac­tion involving en­force­­ment within jurisdic­tion of circuit court. Alto v. State Fire Marshal, 319 Or 382, 876 P2d 774 (1994)

Court review of rule is limited to determina­tion as to whether rule facially complies with statutory and constitu­tional require­ments. Oregon Newspaper Publishers Associa­tion v. Depart­ment of Correc­tions, 329 Or 115, 988 P2d 359 (1999)

Peti­tioner challenging validity of administrative rule in “manner provided” for review of orders in contested cases is not subject to contested case standing require­ment. Lovelace v. Board of Parole and Post-Prison Supervision, 183 Or App 283, 51 P3d 1269 (2002)

Where agency rule is incorporated into terms of contract, court lacks authority to assess validity of rule in ac­tion to enforce contract. Coats v. ODOT, 334 Or 587, 54 P3d 610 (2002); Oregon Restaurant Services, Inc. v. Oregon State Lottery, 199 Or App 545, 112 P3d 398 (2005), Sp Ct review denied

Where validity of rule is challenged, duty of court is to determine whether rule, on its face, departs from legal standard expressed in pertinent statutes. WaterWatch v. Water Resources Commission, 199 Or App 598, 112 P3d 443 (2005)

Rule purporting to imple­ment statewide land use planning goal is invalid if rule departs from standard expressed in statute or in planning goal. City of West Linn v. Land Conserva­tion and Develop­ment Commission, 200 Or App 269, 113 P3d 935 (2005), Sup Ct review denied

Grant of standing allowing any per­son to challenge rule does not violate limita­tions imposed by Oregon Constitu­tion. Kellas v. Depart­ment of Correc­tions, 341 Or 471, 145 P3d 139 (2006)

Record on review of rule may consist only of in­for­ma­­tion whether statutory rulemaking pro­ce­dure was followed, wording of rule itself read in context and statutory pro­vi­sions authorizing rule. Wolf v. Oregon Lottery Commission, 344 Or 345, 182 P3d 180 (2008)

Law Review Cita­tions

2 EL 336 (1972); 15 EL 238 (1985)

Notes of Decisions

Where there were validly promulgated rules re­gard­ing situa­tions analogous to require­ment that peti­tioner, as condi­tion of receiving further medical assistance, make monthly repay­ment of overpay­ments of public assistance funds, adjudica­tion was desirable to es­tab­lish rule to resolve instant case and sub­se­quent similar situa­tions. Larsen v. Adult and Family Services Division, 34 Or App 615, 579 P2d 866 (1978)

Law Review Cita­tions

4 EL 215, 217 (1974)

See annota­tions under ORS chapter 183.

Chapter 183

Notes of Decisions

A legislative delega­tion of power in terms as broad as those used in [former] ORS 471.295 (1) places upon the administrative agency a responsibility to es­tab­lish standards by which the law is to be applied. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 16 Or App 63, 517 P2d 289 (1973)

Administrative regula­tion providing that failure to perform responsibilities adequately was a ground for employee’s dismissal. Palen v. State Bd. of Higher Educ., 18 Or App 442, 525 P2d 1047 (1974), Sup Ct review denied

Where it was determined that agency invalidly terminated substantive policy, trial court did not have authority to order agency to resume policy in absence of validly adopted agency rule. Burke v. Children’s Services Division, 39 Or App 819, 593 P2d 1262 (1979), aff’d 288 Or 533, 607 P2d 141 (1980)

“Trending factors” published by the Depart­ment of Revenue and used to appraise prop­erty for purposes of prop­erty taxa­tion are not “rules” within the meaning of this chapter. Borden Inc. v. Dept. of Rev., 286 Or 567, 595 P2d 1372 (1979)

Appellate court may review pro­ceed­ing meeting defini­tion of contested case whether or not pro­ceed­ing was formal administrative hearing. Patton v. State Bd. of Higher Ed., 293 Or 363, 647 P2d 931 (1982)

Circuit court could not entertain ac­tion for declaratory judg­ment di­rected at PERS, because PERS is subject to APA, which provides exclusive method for review of its ac­tions. FOPPO v. County of Marion, 93 Or App 93, 760 P2d 1353 (1988), Sup Ct review denied

Board of Educa­tion approval of textbook for use in state public schools was not “rule,” but was “order in other than contested case,” and jurisdic­tion for judicial review is in circuit court. Oregon Env. Council v. Oregon State Bd. of Ed., 307 Or 30, 761 P2d 1322 (1988)

Preponderance of evidence standard applies where initial license applica­tion is denied based on willful fraud. Sobel v. Board of Pharmacy, 130 Or App 374, 882 P2d 606 (1994), Sup Ct review denied

Completed Cita­tions

Wright v. Bateson, 5 Or App 628, 485 P2d 641 (1971), Sup Ct review denied, cert. denied, 405 US 930 (1972)

Atty. Gen. Opinions

State Speed Control Board subject to Administrative Procedures Act, (1974) Vol 36, p 1024; proxy voting at board meeting, (1974) Vol 36, p 1064; student con­duct pro­ceed­ings as “contested cases,” (1976) Vol 37, p 1461; rulemaking authority of Statewide Health Coordinating Council and of Certificate of Need Appeals Board, (1977) Vol 38, p 1229; Oregon Medical Insurance Pool is funda­mentally private-sector body, under virtually total private control, created by state to fulfill public purpose and is not state agency or public body subject to Administrative Procedures Act (APA), (1989) Vol 46, p 155

Law Review Cita­tions

51 OLR 245 (1971); 53 OLR 364, 365 (1974); 10 WLJ 373, 420 (1974); 13 WLJ 499, 517, 525, 537 (1977); 57 OLR 334 (1978); 22 WLR 355 (1986); 36 WLR 219 (2000)

1 Legislative Counsel Committee, CHAPTER 183—Administrative Procedures Act; Review of Rules; Civil Penalties, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors183.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 183, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano183.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information