Current through Register Vol. 63, No. 9, September 1, 2024
(1) This rule applies when the agency issues
a notice of proposed action that does not become final in the absence of a
request for hearing. The agency or, if authorized, the administrative law judge
may issue a final order by default:
(a) When
the agency gave a party an opportunity to request a hearing and the party
failed to request a hearing within the time allowed to make the
request;
(b) When the party that
requested a hearing withdraws the request;
(c) Except as provided in section (2) of this
rule, when the agency or administrative law judge notified the party of the
time and place of the hearing and the party fails to appear at the hearing;
or
(d) When the agency or
administrative law judge notified the party of the time and place of the
hearing in a matter in which only one party is before the agency and that party
subsequently notifies the agency or administrative law judge that the party
will not appear at the hearing, unless the agency or administrative law judge
agreed to reschedule the hearing.
(2) If the party failed to appear at the
hearing and, before issuing a final order by default, the agency or
administrative law judge finds that the party had good cause for not appearing,
the agency or administrative law judge may not issue a final order by default
under section (1)(c) of this rule. In this case, the administrative law judge
shall schedule a new hearing. If the reasons for the party's failure to appear
are in dispute, the administrative law judge shall schedule a hearing on the
reasons for the party's failure to appear.
(3)
(a) An
agency or administrative law judge may issue an order adverse to a party upon
default under section (1) of this rule only upon a prima facie case made on the
record. The agency or administrative law judge must find that the record
contains evidence that persuades the agency or administrative law judge of the
existence of facts necessary to support the order.
(b) Except as provided in subsection (c) of
this section, if the agency designated the agency file in a matter as the
record when a contested case notice for the matter was issued in accordance
with OAR 137-003-0505 and no further testimony or evidence is necessary to
establish a prima facie case, the agency file, including all materials
submitted by a party, shall constitute the record. No hearing shall be
conducted. The agency or, if authorized, the administrative law judge shall
issue a final order by default under section (1) of this rule in accordance
with 137-003-0665.
(c) If the
agency determines that testimony or evidence is necessary to establish a prima
facie case or if more than one party is before the agency and one party appears
at the hearing, the administrative law judge shall conduct a hearing and,
unless authorized to issue a final order without first issuing a proposed
order, the administrative law judge shall issue a proposed order in accordance
with OAR 137-003-0645. The agency or, if authorized, the administrative law
judge shall issue a final order by default in accordance with
137-003-0665.
(4) The
agency or administrative law judge shall notify a defaulting party of the entry
of a final order by default by delivering or mailing a copy of the
order.
(5) If a final order by
default is entered because a party did not request a hearing within the time
specified by the agency, the party may make a late hearing request as provided
in OAR 137-003-0528.
Stat. Auth.: ORS
183.341
Stats. Implemented: ORS
183.341,
183.417(4),
183.450,
183.470 &
183.630
