Current through Register Vol. 61, No. 4, April 1, 2022
The agency must accept a properly
addressed hearing request that was not timely filed if it was postmarked within
the time specified for timely filing, unless any of the following applies:
(A) A statute prohibits the agency from
(B) The agency has
adopted an administrative rule exempting itself from this requirement based on
operational conflicts; or
agency receives the request 60 calendar days or more after the entry of the
final order by default or other deadline established by applicable statute or
agency may accept any other late hearing request only if:
(A) There was good cause for the failure to
timely request the hearing, unless other applicable statutes or agency rules
provide a different standard; and
(B) The agency receives the request before
the entry of a final order by default or before 60 calendar days after the
entry of the final order by default, unless other applicable statutes or agency
rules provide a different timeframe.
(c) If a final order by default has already
been entered, the party requesting the hearing shall deliver or mail within a
reasonable time a copy of the hearing request to all persons and agencies
required by statute, rule or order to receive notice of the
(d) In determining
whether to accept a late hearing request, the agency may require the request to
be supported by an affidavit or other writing that explains why the request for
hearing is late and may conduct such further inquiry as it deems
(e) Before granting a
party's late hearing request, the agency will provide all other parties, if
any, an opportunity to respond to the late hearing request.
(f) The requirement imposed in subsection (1)
of this rule and the good cause standard adopted in subsection (2) shall apply
to hearing requests on notices issued after January 31, 2012.
(2) If a party files a request for
a hearing that the agency finds is untimely and the party disputes the agency
finding of the date that the request was received or postmarked or that the
agency mailed or delivered the notice, then the agency will refer the matter to
the Office of Administrative Hearings to provide a right to a hearing on that
factual dispute. The administrative law judge will issue a proposed order
recommending that the agency find that the hearing request is either timely
filed or late.
(3) If the agency or
another party disputes the facts contained in the explanation of why the
request for hearing is late, the agency will provide a right to a hearing on
the reasons why the hearing request is late. The administrative law judge will
issue a proposed order recommending that the agency grant or deny the late
(4) In addition to
the right to a hearing provided in (2) and (3) of this rule, the agency by rule
or in writing may provide in any case or class of cases a right to a hearing on
whether the late filing of a hearing request should be accepted. If a hearing
is held, it must be conducted pursuant to these rules by an administrative law
judge from the Office of Administrative Hearings.
(5) If the late hearing request is allowed by
the agency, the agency will enter an order granting the request and refer the
matter to the Office of Administrative Hearings to hold a hearing on the
underlying matter. If the late hearing request is denied by the agency, the
agency shall enter an order setting forth reasons for the denial.
Except as otherwise provided by law, if a
final order by default has been entered, that order remains in effect during
consideration of a late hearing request unless the final order is stayed under
(7) When a party
requests a hearing more than 60 calendar days (or other time period set by
statute) after the agency or administrative law judge has entered a final order
by default, the agency shall not grant the request unless a statute or agency
rule permits the agency to consider the request.
Or. Admin. R.
DOJ 9-2001, f. & cert.
ef. 10-3-01; DOJ 7-2003, f. 7-11-03, cert. ef. 7-21-03; DOJ 19-2003, f.
12-12-03, cert. ef. 1-1-04; DOJ 11-2005, f. 10-31-05, cert. ef. 1-1-06; DOJ
1-2012, f. 1-11-12, cert. ef. 1-31-12
Stat. Auth: ORS
Stats. Implemented: ORS