Administrative Rule Review

Overview
Pursuant to ORS 183.710 to 183.730, the Office of the Legislative Counsel reviews state agency rules for legal sufficiency. In determining whether a rule is legally sufficient, attorneys in the office answer two questions:

1. Does the rule appear to be within the intent and scope of the enabling legislation?
2. Does the rule raise any constitutional issue other than described in Question 1?

If a Legislative Counsel attorney determines that a rule exceeds the intent and scope of the enabling legislation or otherwise raises a constitutional issue, the attorney will send the agency a memorandum and report called a “negative determination” and ask that the agency contact the attorney to discuss a possible resolution within 30 days. If the concerns are not resolved, the Legislative Counsel attorney will formalize the negative determination and send it to the designated interim committee of the Legislative Assembly. The interim committee then schedules a hearing on the negative determination at a meeting that is held during the interim between legislative sessions. If the interim committee agrees with the Legislative Counsel findings on the legal sufficiency of the rule, the committee will adopt the negative rule determination and it will be posted on this web page (see below).

Interim Committee Assignment List
Each biennium, Legislative Counsel assigns a state agency to one or more interim committees of the Legislative Assembly. The assignments are based on the subject matter content considered by the interim committees and of the rules promulgated by the state agencies. Click here​ for a printable version (.pdf) of the list.

Detailed Description of Rule Review Process

1. The Secretary of State electronically submits an adopted, amended or repealed rule to Legislative Counsel within 10 days after the agency files the rule with the Secretary of State. ORS 183.715.
2. Legislative Counsel makes "written findings" determining whether the rule is within the intent and scope of the enabling legislation or raises constitutional issues. ORS 183.720 (3). Upon receipt of the rule from the Secretary of State, Legislative Counsel undertakes its review of the adopted rule. Only a small portion of the rules reviewed annually by Legislative Counsel result in a negative determination that a rule is not authorized by the enabling legislation or raises constitutional concerns. The vast majority of rules are found to be in compliance with these requirements.
   If there is a negative determination regarding an adopted rule, the agency is contacted for a response and to discuss possible resolution. If a resolution cannot be reached, the negative determination is formalized and sent to the interim committee to which the agency has been assigned. The interim committee administrator contacts the agency once the date and time for the meeting at which the interim committee will consider the negative determination has been scheduled. ORS 183.720; ORS 183.722.
3. The interim committee considers negative rule determinations of Legislative Counsel. Interim committees are responsible for reviewing rule determinations by Legislative Counsel that a rule is not authorized by the Oregon Constitution or by statute. The interim committee also considers the agency's response. ORS 183.722 (1)(b). In most cases, at the meeting of the interim committee to consider the proposed negative rule determination, a Legislative Counsel attorney will present the determination to the interim committee and an agency representative will have the opportunity to present the agency's position. The interim committee may request subsequent meetings with a representative from the agency, together with a representative from the Oregon Department of Administrative Services, to further explain the agency's position. ORS 183.722 (2).
4. Negative determinations are posted on the Legislative Counsel website. If the interim committee adopts the Legislative Counsel determination that a rule is not authorized by the enabling legislation or raises a constitutional concern, the determination is posted below, where it remains until the earliest of the following:
1. The rule is modified and Legislative Counsel determines that the modified rule is within the intent and scope of the enabling legislation or is otherwise constitutional.
2. The state agency notifies Legislative Counsel that a court has determined the rule is within the intent and scope of the enabling legislation or is otherwise constitutional, and all appeals are exhausted.
3. The state agency notifies Legislative Counsel that the Legislative Assembly has modified the enabling legislation so as to authorize the rule and any other constitutional defect has been cured. ORS 183.722 (1)(b).

       Negative rule determinations that have been adopted by interim committees are listed below by administrative rule review number.

Negative Rule Determinations

OAR 413-015-0420 — ARR #1201
The House Interim Committee on Human Services adopted the negative determination of Legislative Counsel with respect to this rule on May 25, 2010.​