Smith v. Dept. of Corrections

In notice and comment rulemaking, complaints against a fiscal impact statement may only be considered if they show how the fiscal impact of the rule would affect factors not considered by the agency promulgating a rule.

Petitioner brought OAR 291-077-0035, an administrative rule promulgated by the Oregon Department of Corrections (DOC), to the Court for judicial review. Petitioner argued that the rule should be declared invalid because DOC did not follow procedural requirements. First, Petitioner claimed that under ORS 183.333(5), an agency must appoint a “fiscal impact advisory committee” to evaluate the rule when ten or more people object to the rule’s fiscal impact statement (FIS); petitioner contended that the agency did not follow this procedure, as more than ten inmates objected to the rule. DOC explained that those who objected to the rule did not explain how inmates would be affected by the proposed rule or why they objected to the FIS. The Court held that the inmates’ objections did not qualify; therefore, this first argument failed. Second, Petitioner claimed that the FIS offered by the DOC was “misleading.” Here the Court held that such an assessment of the FIS is outside of the scope of the proceeding, and therefore the Court did not have the necessary information to find the FIS “misleading.” OAR 291-077-0035 held valid.